Woodman McDonald Hardware P/L v Mackay Regional Council - [2013] QPEC 21

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Woodman McDonald Hardware P/L v Mackay Regional Council [2013] QPEC 21

PARTIES:

WOODMAN MCDONALD HARDWARE PTY LTD ACN 009 744 390
(Appellant)

AND

MACKAY REGIONAL COUNCIL
(Respondent)

AND

BUNNINGS GROUP LIMITED ACN 008 672 179
(Co-Respondent)

AND

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(First Co-Respondent by election)

FILE NO/S:

D51/2011

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20, 21, 22, 23 February, 28, 29, 30 March, 3, 4 May 2012 written submissions to 13 June 2012

JUDGE:

Andrews SC DCJ

ORDER:

The appeal is adjourned to a date to be fixed to enable the parties to make submissions as to appropriate conditions of approval

CATCHWORDS:

Submitter appeal against decision to approve a development application for a material change of use for a large format Bunnings hardware – whether conflict with centres hierarchy – whether conflict for use of Industry (High Impact) Zone land for non industrial use – whether sufficient grounds – whether economic need – whether planning need – whether adverse impacts – whether absence of amenity and traffic impacts are “grounds” – whether to have regard to the published draft planning scheme – whether approval sabotages forward planning or will have a significant adverse impact on planned facility

Weightman v Gold Coast City Council [2003] 2 Qd R 441, [2002] QCA 234

Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370

Woolworths Ltd v Maryborough City Council(No 2) [2006] Qd R 286

Yu Feng Pty Ltd v Maroochy SC [2000] 1 QdR 306

Grosser v Gold Coast City Council (2001) 117 LGERA 153

Palyaris v Gold Coast City Council [2004] QPELR 162

Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337

Stappen Pty Ltd v Brisbane City Council [2005] QPELR 466

PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144

Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APA 165

Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157

Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd.R 266

Glenella Estates v Mackay RC (2010) 180 LGERA 226

COUNSEL:

Gibson QC and Ure of Counsel for the appellant

Hughes SC, Skoien of Counsel and Page of Counsel for Mackay Regional Council

Gore QC and Job of Counsel for the co-respondent

SOLICITORS:

Heiner and Doyle for the appellant

McCullough Robertson Solicitors for the respondent

Norton Rose for the co-respondent

Introduction

Nature of the appeal

The issues in the appeal

The subject land and its surrounds

Population and Hardware Stores in Mackay

Industrial land – demand and supply

Planning Processes Underway

The decision rules for this proceeding

Does the proposed development conflict with the centres hierarchy provisions of the planning scheme as out of centre development?

What is the nature and extent of the conflict with retail hierarchy provisions of the planning scheme?

Does the proposed development conflict with the planning scheme for using the land for large scale retailing instead of preserving it for industrial use?

The nature and effect of the loss of the subject land for industrial uses

What grounds are relied upon to justify the development despite conflict?

The Regional Plan

Have Council decisions departed from the planning scheme’s retail strategy in a way that a policy may be deduced?

Need

Impacts of the approval

Future Planning

Conclusions

Introduction

This is a submitter appeal against the decision of the Mackay Regional Council (“the Council”) to approve a development application (“the development application”) by Bunnings Group Ltd (“Bunnings”) for a Development Permit for a Material Change of Use for a Hardware Store, Plant Nursery, Catering Shop and ancillary uses, and a Development Permit for a Reconfiguration of one lot into four lots in respect of land located at 165-179 Archibald Street, Paget, in South Mackay, more properly described as Lot 28 on SP145140 (the “subject land”).

The appellant operates a Mitre 10 hardware store at 281 Mount Nebo Road, Paget. The Mitre 10 store is at premises about 200 metres north of the subject land, on the northern side of Archibald Street. It comprises a hardware warehouse, timber trade area, nursery, glass and aluminium fabrication facility and a steel roofing fabrication facility. The appellant will be a commercial competitor if the proposed Bunnings Store is approved.

The subject land is 21.27 ha in area. The development application seeks to reconfigure the subject land.[1] Lot 28 is the subject of a previous subdivision approval which created 35 lots.
[1]As depicted in the plan at Exhibit 1 at p 16.

The development application proposes that a portion of the subject land, 2.95 ha (“the Bunnings site”) be developed and used for the purpose of a large format hardware store (the “proposed Bunnings Store”) of the kind commonly known as a Bunnings Warehouse, with a gross floor area (“GFA”) of 12,891 m² comprising 8,733m² of warehouse, 2,314m² of plant nursery, 1,844m² of timber trade area and a landscaped carpark with 338 spaces. While the proposed Bunnings Store would involve some component of trade sales, 85% or more of its sales would be retail.[2]
[2]Paragraph 12 of the Joint Economics Report Ex 4 p 43.

The subject land is located in the Industry (High Impact) Zone under the planning scheme for the City of Mackay (the “planning scheme”).

The Council supports the approval which it gave to Bunnings. The Department of Transport and Main Roads (“DTMR”) was a concurrence agency for the development application by Bunnings. It was represented at joint meetings of traffic engineers, but has been excused further attendance at the appeal as it is accepted that there are no traffic issues that would prevent approval of the Development Application. It is excused until such time as the parties are required to prepare a final order with conditions, if the proposal is approved.

The appellant submits the court should allow the appeal and refuse the development application as the development application directly conflicts with important provisions of the planning scheme, and Bunnings has failed to demonstrate sufficient grounds to justify an approval despite such conflict.[3] In particular, the appellant submits Bunnings has failed to demonstrate an economic or planning need for the development on the subject land, and has failed to demonstrate that the impacts of the development on the availability of hardware facilities to the community at Mackay will be acceptable in planning terms.
[3]SPA s 329(1)(b)

Nature of the appeal

This appeal is by way of hearing anew.[4] Bunnings, carries the onus, and must satisfy the court that the appeal should be dismissed.[5] 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”.[6] The court, in deciding the appeal may make the orders and directions it considers appropriate.[7]
[4]SPA s 495(1).
[5]SPA s 493(2).
[6]SPA s 495(2)(a).
[7]SPA s 496(1).

In deciding the appeal the court must assess the development application in accordance with the provisions of the SPA s 314(2) and (3) and decide the development application in accordance with the provisions of the SPA s 326. In particular, the decision must not conflict with an instrument referred to in the SPA s 314(2) (other than a State planning regulatory provision) against which impact assessment is carried out, unless (relevantly) “there are sufficient grounds to justify the decision, despite the conflict”: the SPA s 326(1)(b). For the SPA s 326(1)(b) “grounds” means “matters of public interest” and does not include the personal circumstances of an applicant, owner or interested party.

The issues in the appeal

This court directed that the disputed issues be those contained in the notice of appeal as further particularised by the appellant. The notice of appeal identifies the following issues:

(a) the proposed development significantly conflicts with the Planning Scheme, including the Desired Environmental Outcomes, the Mackay Frame Locality Code and the Retail and Commercial Code;

(b) the proposed development would result in unacceptable loss of land zoned Industrial (High Impact);

(c) the proposed development is “out of centre” development that conflicts with the centres hierarchy in the Planning Scheme and is ad-hoc development that conflicts with planning principles supporting consolidation of centres and a planned urban structure;

(d) there are not sufficient grounds to approve the development despite the conflicts;

(e) there is no economic need for the development;

(f) the proposed development will have a significant adverse impact on existing and planned competing facilities;

(g) the proposal would jeopardise the economic development, sustainability and intended role of the Paget precinct;

(h) the proposal would cause unacceptable adverse impacts on the operation of the external road network.

Issue h), it is accepted by the appellant that traffic issues are not a warrant for refusal of the application and may be appropriately addressed by conditions.

No unacceptable amenity impacts will arise from development in accordance with the development application.

The first three issues in the notice of appeal concern two alleged conflicts between the proposed development and the planning scheme: conflicts with the centres hierarchy provisions in a network of centres and the industrial land provisions.

If a conflict exists, the court must determine whether there are sufficient grounds to justify the decision to approve despite the conflict.[8] Deciding whether there are conflicts is logically determined first.
[8]SPA s 326(1)(b)

The subject land and its surrounds

The subject land is in South Mackay, south of the Mackay CBD and the Pioneer River, at the northern end of the Paget Industrial Area, near the intersection of the Bruce Highway, the Peak Downs Highway and Archibald Street.

The subject land sits at the north-west corner of the Paget Industrial Estate, east of the Bruce Highway and south of Archibald Street. Most of the Paget Industrial Estate is similarly zoned Industry (High Impact). Apart from some public purpose land and some insignificant other parcels of land (mostly fronting the Bruce Highway), the balance of the Paget Industrial Estate is located in the north-east corner of the Paget Industrial Estate and is zoned Industry (Low Impact)[9].
[9]Series 24 – Paget of the Zone Map for Mackay City at p 162 of the Planning Scheme Extracts, Exhibit 5.

The land nearby on the northern side of Archibald Street is either zoned Industry (Low Impact) or has a residential zoning. The land to the west (that is, across the Bruce Highway, has an urban zoning (e.g. commercial or residential[10]). That urban area to the west is known as Ooralea, being an area that has been identified by the Council as the next major urban growth area in Mackay.
[10]Ibid.

Pursuant to the planning scheme, the subject land is located within:

1. the Mackay Frame Locality;

2. the Pioneer River (Urban) Precinct); and

3. the Industry (High Impact) Zone.

In this Zone the proposal for a hardware store is impact assessable, but it is described, in effect, as a “consistent” use.

Population and Hardware Stores in Mackay

Over the last ten years or so:

1. there has been larger than expected population growth in Mackay.[11] When the Planning Scheme was prepared in 2006, the 2003 official population forecasts were used and they under estimated growth. In 2003 the forecast Mackay population for 2011 was 87,973 and for 2021 was 100,020. In 2011 the estimated Mackay population for 2011 was 101,493 (15.4% increase on projection) and the estimate for 2021 was 129,942 (29.9% increase on projection).[12]

2. there has been an increase in the demand for retail hardware facilities[13] which has been partly addressed by increased supply;

3. there has been a significant change in the publicly preferred retail hardware supply format involving the successful introduction of large format hardware facilities into the market for retail hardware facilities.[14]

[11]See paragraphs 22 and 23 of the Joint Economic Report at page 45 of Document 4 in Ex 4.

[12]Ex 4 tab 4 p 47

[13]See the evidence of Mr Duane at Transcript 4-4/6 – 46.

[14]See the evidence of Mr Duane at Transcript 4-4/6-32 and the evidence of Mr Malkiewicz at Transcript 6-80/1 16.

There are currently only two significant hardware stores with a retail offering on the southern side of the Pioneer River. One is Porters in the Mackay CBD, centrally located to the entire region. The Porters CBD store provides around 15,700m² of floorspace across separate buildings including a supply/timber yard, plumbing supplies, trade paint area, and a hardware and lifestyle centre. It offers about 8,000m² of retail hardware.[15] The other is the appellant’s hardware store to the north of Archibald Street.
[15]See Figure 7 of the Joint Economic Report at page 67 of Document 4 in Exhibit 4.

There are differences between those two significant hardware stores and the large format style proposed for the Bunnings site. A large format Bunnings typically stocks around 29,000 different items (SKUs) which are available in stock at any given time. Bunnings’ special orders team secures goods, and parts, over and above that range upon request. Instead of offering a customer only several different items to choose from, Bunnings offers many more, and provides a range of price and quality which customers can tailor to suit their budget. The Bunnings at Mount Pleasant traded for 25 hours per week more than the trading hours of the appellant’s Mitre 10 at Paget at the time of the hearing. I infer that the proposed Bunnings store would trade for hours similar to those of the Bunnings Mount Pleasant.

The appellant’s Mitre 10 stocks around 25,000 SKUs. It presents them to customers over 7,500m² of floorspace across a number of separate buildings including a traditional Mitre 10 trade centre of 2,500 to 3,000m², a timber yard together with a glass and aluminium centre and a roofing centre in separate buildings. The latter are “clearly targeted at a Trade customer as compared with a retail customer”. Its retail floorspace was about 3,000m².[16] It is to be contrasted with the 12,900m² of retail floorspace for the proposed Bunnings store. Mr Leyshon observed that the appellant’s retail area is fairly small by modern standards and that it had a limited amount of customer parking such that it would not be as user-friendly as a Bunnings or Masters store. I accept that.
[16]Ex 4 p 67

I accept the evidence of Mr Leyshon that the character of the large scale Bunnings format is different from that offered by the two existing stores south of the river.

South of the Pioneer River in Mackay, there is no existing large format hardware store of the type offered by Bunnings or Masters. Masters is another brand of large format hardware supply that is establishing itself in the Australian market place in competition with Bunnings. There is a trend in hardware retail to very large outlets of the big box Bunnings style most commonly of 10,000 to 13,000m² GFA. Woolworths has introduced the Masters variant in Australia in competition with Bunnings because the community currently wants that style of hardware retailer.[17]
[17]T6-80/1-16

There is an existing large format Bunnings hardware store north of the Pioneer River at Mount Pleasant. This hardware store is going to relocate to an approved location further north at a Richmond sub-regional centre. A second large format hardware Masters store has been approved adjacent to that approved Bunnings’ site at Richmond. In terms of hardware, the residents of Mackay on the northern side will have advantages over the residents on the south. They will generally be closer to hardware stores, closer to the appealing large format hardware stores, have more hardware items from which to choose and if they choose to access a large format hardware at peak traffic times their advantage increases materially because of the time taken for residents south of the river to reach the Rural View sub-regional centre.

It is expected that the total population for greater Mackay (excluding a northern area described by the economic experts as the Far North sector) will grow from about 144,000 people in 2011 (ie 165,300 less 21,800) to about 189,000 people in 2021 (i.e. 216,440 less 27,680).[18]
[18]See Table 1 to the Joint Economics Report at page 46 of Document 4 in Exhibit 4.

These population figures can be broken down into:

a population in 2011 of almost 45,000 people in the Mackay area south of the Pioneer River (in an area identified by the economics experts as the primary trade area for the proposed Bunnings store);
an expected population in 2021 of 65,000 people in that primary trade area;
a further growth of 15,000 people in other areas south of the Pioneer River identified by the economics experts as part of the main trade area for the proposed Bunnings store; and consequently, the economic experts’ analysis is based upon:[19]
a total population in 2011 in the main trade area for the proposed Bunnings store (being the area south of the Pioneer River) of almost 80,000 people; and
a total population in 2021 in the main trade area for the proposed Bunnings store (being the area south of the Pioneer River) of about 117,000 people.

[19]See Table 1 in the Joint Economics Report page 46 of Document 4 in Exhibit 4.

I accept that these current and forecast populations are above the 2003 projections upon which the planning scheme is based.[20]Bunnings and Council each submit the difference between the reality and the projections is “significant”. The appellant submitted that demonstrated population growth has not “materially” exceeded population forecasts. The figures speak for themselves. Whether the unexpected population growth is material for the issues in this proceeding is better judged after considering whether it has been sufficient to trigger an economic need for the proposed store.
[20]See paragraphs 22 and 23 of the Joint Economic Report at page 45 of Document 4 in Exhibit 4.

Three bridges cross the Pioneer River in Mackay. One of these bridges is out to the west of Mackay, on the fringe of the existing and planned residential areas. The other two bridges are approached from the south through built-up areas and signalised intersections in, or near, the Mackay CBD itself. The obstacle created by the access problems of the Pioneer River is a relevant factor in the consideration of the economic issues in this case.[21] The river establishes the northern extent of both the primary trade area and the main trade area for the proposed Bunnings store.[22] Generally, residents north of the river are not expected by the economists to cross the river to access the proposed Bunnings store because they will be so proximate to the planned stores at Richmond and because of the limited access across the river. For those residents south of the river the travel time between the subject land and the adjacent Mitre 10 hardware of the appellant to the Bunnings at the Mt Pleasant sub-regional centre is of the order of 10 minutes, with a further one and a half minutes from that Bunnings to the Holts Road Rural View homemaker centre. Although that travel time typically increases to 20 minutes during peak hours, at weekends it is also of the order of 10 minutes and up to 40 minutes one way at peak hour at the weekend. The round trip is about 22km. If the approval is refused it means that a resident on the southern side of the river who would prefer to use a large format hardware store has the choice of adding a twenty two minute round trip to the journey out of peak hour, a forty minute round trip in peak hour during the week and an hour’s round trip or more if travelling at peak times at the weekend. Otherwise, the customer from the southern side may use the relatively large format Porters in the CBD or alternatively the appellant’s Mitre 10 which, though not large format, does have a large range. There are other small hardware suppliers not taken into account by the economic experts in assessing economic need for their joint report. As the economists omitted them in their assessments of need I infer that they contribute little more to meeting the retail customer’s hardware needs on the southern side of the river.
[21]See paragraphs 13, 14 and 17 of the Joint Economic Report at page 44 of Document 4 in Exhibit 4.
[22]See Section 3 of the Joint Economic Report at page 44 of Document 4 in Exhibit 4.

Industrial land – demand and supply

The population growth in Mackay over the last ten years has been driven predominantly by the mining boom in Central Queensland. This boom generated higher than expected demand for industrial land in Mackay. It brought to Mackay many skilled manual workers capable of attending to their own home renovations, which in turn has, in part at least, fuelled the growth in hardware outlets, although, as the evidence reveals, growth in large format hardware outlets is a nationwide trend.

There were at the time of the hearing some 281 hectares of vacant land identified for “Industrial” use in Mackay,[23]as identified in the Whitsunday Hinterland and Mackay Region Industrial Land Demand Study prepared for the State Government by The AEC Group (the “AEC Study”).[24] Of this total, 232 hectares was vacant raw industrial land and 49 hectares was serviced and ready for development.
[23]See paragraph 110 of the Joint Economic Report at page 72 of Document 4 in Exhibit 4.
[24]See Exhibit FG3.

This figure excludes a further area of 432 hectares of “Industrial” land owned by the Port of Mackay or by North Queensland Bulk Ports.

While there are disputes between the economic experts about precisely when there may be a shortfall of industrial land in Mackay, it is apparent that the land identified in the planning scheme is insufficient to meet the anticipated demand for industrial land to 2031 and there is the potential for a shortfall to emerge in the period from 2016 to 2021. The variation between 2016 and 2021 depends upon the rate at which industrial land is taken up, another matter of dispute.

The Bunnings site, involving an area of 2.95 hectares, represents about 1.3% of the total of that 232 hectares of vacant industrial land in Mackay at the time of the hearing.

The Regional Plan records that:

“There is sufficient undeveloped land at Paget to meet short-term industry demand. Further opportunities for industrial growth have been identified directly south of Paget and south of Bakers Creek at Rosella.”

Additional land for industrial use will be needed in Mackay in the next 10 years. It is necessary for Council to undertake planning for new industrial areas.

Planning Processes Underway

Demand for industrial land in Mackay in recent times has triggered further planning for its supply. Most notably, consistent with the findings of the AEC Study, the Mackay, Isaac and Whitsunday Regional Plan (“Regional Plan”),[25] which commenced in February 2012, has identified the “Rosella Industrial Development Area” of some 713 hectares in South Mackay, on the Bruce Highway, south of Bakers Creek and not far from the Paget Industrial Area.[26]
[25]See Exhibit 6.
[26]See Map 8 on page 111 of Exhibit 6. See also Section 7.2 of the Regional Plan at pages 109 and 110 of Exhibit 6.

The economic experts agree that land identified in the Rosella Industrial Development Area would more than provide Mackay with an adequate buffer stock of industrial land to 2031[27]subject to significant preliminary works, investigations and infrastructure delivery.
[27]See paragraphs 118 and 119 of the Joint Economic Report at pages 72 and 73 of Document 4 in Exhibit 4.

Further, the Regional Plan has identified an additional “Rosella Identified Growth Area” (immediately to the west of the Rosella Industrial Development Area) which is intended to accommodate additional growth after 2031.

The decision rules for this proceeding

The SPA provides rules which bind this court in determining whether to approve this application. The relevant rules in this proceeding are:

“329 Other decision rules
(1)The assessment manager’s decision must not conflict with a relevant instrument unless -
…
(b)There are sufficient grounds to justify the decision, despite the conflict;
…”

The planning scheme is a “relevant instrument” within the meaning of the SPA s 329(1).

Those provisions of the SPA are somewhat similar to provisions of the Local Government (Planning and Environment) Act 1990 (repealed) at s 4.4(5A) which provided that:

“The local government must refuse to approve the application if –
(a)The application conflicts with any relevant strategic plan or development controlled plan; and
(b)There are not sufficient planning grounds to justify approving the application despite the conflict.”

In Weightman v Gold Coast City Council [2002] QCA 234, [2003] 2 Qd R 441 at [36] Atkinson J with whom McMurdo P agreed held that;

“[36] In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P & E Act, the decision maker should;
1. Examine the nature and extent of the conflict;
2.Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3.Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

Her Honour continued in the same judgment, to expand on what is required of the decision maker when approaching the second and third of those tasks:

“[44] The second question the decision maker has to consider is whether there are any planning grounds on which to approve, or which militate against approval of, that part of the application which is in conflict with the planning scheme. The nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.
[45] The decision maker should then consider other aspects of the development and determine whether they are consistent with proper planning grounds. Those are the planning grounds which apply whether or not the conflict exists.
[46] It is only after consideration of all of these matters that the decision maker is able properly to assess whether or not the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

In Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 the court implied that the three step process identified in Weightman for the legislation then applicable, generally remains an appropriate way to comply with the decision rules imposed at the SPA s 329(1)(b).[28]However, one and possibly two significant points of distinction were noted.
[28]Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 [18]-[25] and footnote 10

In Weightman, Justice Atkinson explained the proper process to be applied under s 4.4(5A)(b) of the repealed P&E Act. Her Honour was dealing with a clause which specifically dealt with sufficiency of “planning grounds”. I emphasise “planning” as the descriptor of “grounds” because the word is omitted from the SPA s 329(1)(b) and “planning grounds” are not expressly included in the definition of “grounds” in the SPA schedule 3. Holmes JA in Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 at [25] when considering the cases of Grosser v Gold Coast City Council[29]and Palyaris v Gold Coast City Council[30]noted those cases were concerned with a different expression, “planning grounds” and hence a narrower inquiry than that entailed in assessment of the unqualified and broadly defined “grounds” which are relevant for the SPA s 329(1)(b).
[29](2001) 117 LGERA 153
[30][2004] QPELR 162

The second point of distinction is one better called a possible point of distinction. If Weightman stood for a proposition that the importance of a relevant matter depends on whether it is considered in the second or third steps of the three step process, Holmes JA made clear[31] that when making a decision under the SPA s 329(1)(b) the importance of the ground must depend on what it is, not where it falls in the three step approach in Weightman.
[31]Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 at [21]

This court must also recall that the Court of Appeal has determined that it is a mistake to treat the relevant passage in the Weightman judgment as if it were a code.[32]

Does the proposed development conflict with the centres hierarchy provisions of the planning scheme as out of centre development?

[32]Woolworths Ltd v Maryborough City Council(No 2) [2006] Qd R 286 [25] per Fryberg J

Most relevant provisions of the planning scheme are set out in the schedule attached to these submissions. The attached schedule omits Division 2 Strategic Framework from the planning scheme.[33] That division does not have a role in development assessment.
[33]It appears in Exhibit 5.

Would approval of the proposal conflict with the centres hierarchy provisions of the planning scheme? The appellant and Bunnings each submitted the same principles for the interpretation of the planning scheme being those collated in Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337 at [18]. I accept that those principles apply.

The planning scheme, at Part 3.1 (3)(c)(iv), identifies and establishes a network of centres. The “Network of Centres – Information Map” within the Planning Scheme,[34] depicts the location and type of these centres, which include: The Mackay City Centre, the Mt Pleasant Sub-Regional Centre, The Rural View Major Neighbourhood Centre, three centres classified “Neighbourhood Centre or Mixed Use Centre”, and six “local centres”. The Bunnings site does not locate within any of these centres.
[34]Planning scheme Div 22 s 9. 101(2)(a), (b) and (e); Table 9-21.2 at p 1, Exhibit 5 pp 126-128; Schedule pp 7-8. Ex 5 p164

The proposed development would be “out of centre development”.

A particular issue is raised in this appeal is whether it would “conflict” with the maintenance of the centres hierarchy as established by this planning scheme.

In determining whether a conflict exists with a planning scheme, Wilson SC DCJ (as his Honour then was) suggested in Stappen Pty Ltd v Brisbane City Council [2005] QPELR 466:

“[31]...ultimately, the exercise involves discerning from the verbiage of the scheme, the degree of importance it attaches to compliance with particular principles, requirements or Codes and, then, analysis of the particular proposal within that regime.”[35]

[35]Stappen Pty Ltd v Brisbane City Council [2005] QPELR 466

The DEO 3.1(3)(c)(vi)[36] and the Retail and Commercial Code[37] provide to the effect that retail and commercial activities outside a designated centre are limited to premises with a size and function consistent with the provision of local facilities. Although “local facilities” is defined for the Retail and Commercial Code at s.9.103, no such definition appears in the planning scheme Dictionary. Whether or not the definition applies to the planning scheme, the size of the proposed Bunnings development and, consequently, the size of its trade area, mean that it is not consistent with the provision of “local facilities”. The decision to approve would result in a conflict with those provisions.
[36]Ex 5 pp 22-23; Schedule to these reasons p 2.
[37]Planning scheme Div 22 s 9.101(2)(a), (b) and (e); Table 9-21.2 p 1, Ex 5 pp126-128; schedule to reasons pp7-8

A decision to approve would also conflict with provisions of the planning scheme that recognise and seek to implement a network of retail centres in the planning scheme areas, namely:

(a) the provision, in 3.1 DEO (3)(c)(v)[38] that the growth of centres occurs in step with demonstrated community need, recognising the role and function of other centres within the network of centres;
[38]Ex 5 p 23; Schedule 1 p 2.

(b) the provision in Part 5, Division 6 Overall Outcomes for the Mackay Frame Locality, at (2)(h)[39] that new commercial uses be located in the Commercial zone or the Village zone in accordance with the overall outcomes of those zones and the network of centres;
[39]Ex 5 pp 47-48; Schedule p 3.

(c) the provisions of Part 5, Division 6 Overall Outcomes for the Mackay Frame Locality, at (3)(c) of those overall outcomes[40]that, for the Pioneer River (Urban) Precinct, commercial activity occurs within the boundaries of the Commercial zone and accords with the network of centres;
[40]Ex 5 p 50; Schedule p 4.

(d) Division 7 Specific Outcomes and Probable and Acceptable Solutions for the Mackay Frame Locality[41] at P1;

(e) the provisions of Division 8 – Overall and Specific Outcomes and Probable and Acceptable Solutions for the Commercial Zone in the Mackay Frame Locality, (2)(a)[42] that commercial facilities and services are small-scale and located in an existing centre which has a floor area significantly less than 2,500m2 GFA;

[41]Ex 5 p 54; Schedule pp 5-6/

[42]Ex 5 p 57; Schedule p 5.

The arguments of Bunnings and the Council on the issue of whether conflict with the scheme exists seem to merge the issue of the existence of a conflict with a separate issue of the significance of the conflict. Focus on the significance of a conflict with particular provisions of a scheme and consistency with other provisions may be instructive to determine whether there is conflict with the scheme. But if submissions about “significance of conflict” are really about the significance of the practical consequences of an approval in conflict with the scheme then they address a different issue, being the issue in the SPA s 329(1)(b).

Bunnings submitted:[43]
[43]Written submissions [64].

“… whilst a decision to approve the proposal would conflict with the provisions of the Scheme which intend that commercial and retail development locate within the identified network of centres, when regard is had to the Planning Scheme as a whole (as is required), the conflict dissipates …”

Bunnings further submitted:[44]
[44]Written submissions [6].
6…any such conflict is neither significant nor suggestive of some adverse impact of any relevant town planning nature, because:
(a) as far as the centres hierarchy issue is concerned, whilst a decision to approve the proposal may appear to conflict with provisions of the Planning Scheme which intend that commercial and retail development locate within the identified network of centres, when regard is had to the Planning Scheme as a whole, it is apparent that:
(i) those provisions are directed towards achieving the Scheme’s overall objectives of meeting community need, protecting centre roles and functions, and ensuring appropriate scale, intensity and character of development within centres
(ii) approval of the proposal will assist in fulfilling those objectives;

(b) there is no identified centre within the network which can accommodate a large format hardware store in a manner consistent with the identified role and function of centres in the network (other than at Mt Pleasant, north of the River, where the existing Bunnings is to relocate outside of the centre, following the recent approval of an out-of-centre store at Rural View).

Bunnings submitted as a written conclusion:[45]
while a decision to approve the proposal has apparent conflict with provisions of the planning scheme which confine retail facilities to the Commercial Zone, and which discourage retail facilities from the Industry (High Impact) Zone, upon a proper analysis, any such conflict is neither significant nor suggestive of some adverse impact of any relevant town planning nature, and any such conflict is overcome by various grounds which favour approval.

[45]Written submissions [179]

In oral submissions, Bunnings accepted that there is conflict with the planning scheme’s strategy to locate retail development within the identified network of centres but submitted that the conflict is not substantial.[46]
[46]T9-9 L49 to T9-10 L5.

The Council’s submission similarly did not concede a conflict with the planning scheme. The Council submitted in writing:

“The Appellant’s contentions with regard to the alleged conflict with the provisions of the planning scheme concerning the retail hierarchy are completely undermined by the concessions made by the Appellant’s town planner, Mr Reynolds, that approval of the proposed Bunnings store would not have a significant impact on the existing hierarchy of centres in the Planning Scheme nor would approval of the proposed Bunnings Store cause any of the existing centres not to function properly.
Accordingly, any conflict with the provisions of the planning scheme concerning the preferred location of additional retail facilities (of the sort proposed here) would have to be viewed as technical only.”

The Council’s submission is consistent with the opinion evidence of two town planners. Mr Forsythe opined:

“6.7.3 … whilst prima facie there appears to be a conflict with the planning scheme provisions … whilst the scheme seeks to establish and then protect a centres hierarchy, … whilst the use maybe proposed to locate out of an existing identified centre … it is not in conflict with the relevant planning provisions per say …” (sic)

Mr Schomburgk opined:

“6.7.4 … that there is no practical conflict with the relevant planning scheme provisions …
6.7.6 … while the proposal is on an ‘out of centre’ site … that is a technical factor.”

The threshold issue in the SPA s 329(1) is whether there is a conflict with the planning scheme. The significance of a conflict with the planning scheme is not part of the threshold issue.

Conflict with a provision or with several provisions of a planning scheme may not amount to conflict with a planning scheme. The SPA s 329(1) is concerned with a conflict with a relevant instrument and not with conflict with a provision of a relevant instrument. If a provision is significant in the scheme then a decision in conflict with that provision is more likely to be also in conflict with the scheme. Once conflict with a provision also amounts to conflict with the planning scheme then the SPA s 329(1)(b) requires the court to determine whether there are sufficient grounds to justify the decision. The court cannot avoid that duty imposed by the SPA s 329(1)(b) by classifying a conflict with the scheme as insignificant, insubstantial or technical. The significance of a conflict is relevant, not to the existence of a conflict but to the next issue which arises when performing the duty imposed by the SPA s 329(1)(b). If conflict with the scheme exists, the significance of that conflict is relevant to the sufficiency of grounds to justify a decision in conflict with the scheme.

If the conflict is dissipating or not substantial or not significant or technical, that consequence is more likely to be relevant to issues created by the SPA s 329(1)(b), namely whether there are sufficient grounds to justify the decision despite the conflict with the planning scheme. The less significant the consequences of conflict with the scheme, the easier it may be to establish sufficient grounds to justify the decision in conflict. If Bunning’s submissions or the Council’s were intended to mean that this court is relieved of the duty to consider the matters in the SPA s 329(1)(b) if the conflict with the scheme is not substantial, or not significant nor suggestive of some adverse impact of any relevant town planning nature I would reject them.

Bunnings and Council each submitted that Mr Reynolds had opined that the proposal would not have any unacceptable impact upon the achievement or maintenance of the hierarchy of centres under the planning scheme. That is correct. Mr Reynolds explained that south of the river the existing centre’s hierarchy is minimal and is not going to alter the role or function of the small centres on the southern side of Mackay in the existing planning scheme. Mr Reynolds qualified his evidence to make clear that he spoke of the existing hierarchy of centres in the existing planning scheme. He explained:[47]

“The question is theoretical because, in fact, what we have is a draft planning scheme well advanced with the centre's hierarchy well advanced with Ooralea planning well advanced and there is a sensible strategy in place which council is moving on and moving on very soon and quite quickly to modify their centre's hierarchy in a way that would accommodate this proposal. So your question was theoretical and that's why I emphasised the word ‘existing’.”

[47]T7-15 l 30-37

One reason for limiting out of centre development is to prevent detrimental impacts on existing centres. This reason is consistent with the evidence of Mr Reynolds about the basis for a hierarchy of centres. It is also expressed in the Mackay, Isaac and Whitsunday Regional Plan by Policy 8.3.8 which provides:

“8.3.8Out-of-centre development is not supported as it may detrimentally impact on the role and function of defined activity centres.”

I regard the impact which the development would have on the role of existing centres as relevant to the nature and extent of any conflict with the scheme, rather than to the existence of a conflict. It is relevant to the matters required to be considered by SPA s 329(1)(b), namely whether there are sufficient grounds for approving the development, despite the conflict. The fact that this out of centre development will have minimal impact on existing centres does not remove the conflict with the scheme which flows from the approval of this out of centre development. It reveals the nature of the conflict with the planning scheme, while prima facie existing is actually minimal. It is relevant to the question of sufficiency of grounds for approval.

This approach is consistent with the approach determined to be proper in Weightman v Gold Coast City Council[48] where the Court of Appeal, dealing with an equivalent issue in s 4.4(5A)(b) in the Planning and Environment Act (repealed), determined that the nature and extent of the conflict was relevant when considering the sufficiency of planning grounds to justify the conflict. The three step process in Weightman is not the process to determine the existence of a conflict.
[48][2003] 2 Qd R 441 at [36] per Atkinson J with whom McMurdo P agreed at [14]

The appellant submits the development represents “out of centre” retail development in direct conflict with the maintenance of the centres hierarchy and that the centres hierarchy is an important and deliberate strategy of the planning scheme. I accept the appellant’s submission.

I am satisfied that a decision to approve the proposed development would conflict with the planning scheme. The conflict requires the court to consider whether there are sufficient grounds to justify the decision.

What is the nature and extent of the conflict with retail hierarchy provisions of the planning scheme?

The nature and extent of the conflict with the retail hierarchy provisions is a separate issue relevant to a consideration of whether there are sufficient grounds to justify the decision, despite the conflict.

There is an emphasis within the planning scheme on a network of centres based upon “role and function”. Trips to a large format hardware store are more likely to be monthly than more frequently. The only other currently designated centre with a role and function which contemplates a large format hardware store is Mt Pleasant. It already has such a store, the existing Bunnings, which will move to other premises at Holts Road Richmond, recently approved “out of centre” in the Rural zone.

Neighbourhood centres are identified as fulfilling a function of “weekly or high- frequency shopping”. Given that a Bunnings attracts monthly trips on average, it is not a use which would be consistent with the “role and function” of a neighbourhood centre. A large format hardware store could not sensibly locate in a mixed use centre or a local centre, each of which is even lower in the centres hierarchy.

A hardware facility does not form a key component of a traditional retail centre. A large format hardware can be a destination on its own. While there are places where Bunnings co-locates a hardware with other traders, in general, a trip to Bunnings is a specific purpose trip.[49]
[49]Duane Report – Ex. 14, para 58, p 21, also T4-11/20-35.

Large format hardware stores are difficult to locate in traditional retail centres.[50] If in a centre, a large format hardware store is usually found at the periphery of designated retail centres, or in specific “homemaker centres”, or in industrial areas. They are usually in stand-alone locations. There are sound town planning reasons for that, such as the potential impacts on conventional centres.[51] The proposed use has no “centre presence”. It comprises large blank walls, with separate trade entry and exit, and with no real frontage activation. It is not what would be expected in a conventional centre development. The location of a land consumptive use of the type proposed, which has more in common with industrial uses than with conventional retail uses, would represent an inappropriate and inefficient use of valuable “centre” land that would otherwise be available for more conventional retail uses.
[50]Reynolds T7-33/29-34.
[51]Schomburgk, First Planners’ JER, para 6.7.7(vii), p 24 – Ex. 4, 106, Duane T4-9/10-35.

Mr Reynolds opined that the establishment of a Bunnings on the subject site is not necessarily going to alter the role or function of those much smaller order centres on the southern side of Mackay in the existing planning scheme.

I accept the evidence of Mr Reynolds that the proposed Bunnings Store would have an acceptable impact on the existing hierarchy of centres in the planning scheme north or south of the river and that it would not cause any of the existing centres not to function properly. The opinion of Mr Reynolds is consistent with the opinion of the other two planners in this respect.

Those opinions are particularly significant. They demonstrate that the extent of the conflict with the “relevant instrument”, namely the current planning scheme, is “technical” and causes “no practical conflict” when considering that scheme’s retail hierarchy and network of centres.

P6 of the Retail and Commercial Code[52]sets the following criteria for the development of facilities which are not anticipated in a centre:
[52]Ex 5 p129

1. the proposed use does not alter the role and function of a designated centre;

2. population has increased in the trading catchment of the centre since the commencement of the Scheme such that the population is able to support the proposed services;

3. the proposed use contributes to convenient access to a range of centre services and facilities for residents;

4. City residents have a choice of services and facilities without unnecessary duplication.

The planners’ opinions about the technical nature of the conflict conform with the first two criteria apply in relation to the proposed use. The fourth criterion, concerned with duplication is more problematic: being related to need, the issue of duplication depends partly on whether there is economic need and planning need. For reasons which below I find that there is economic and planning need for retail hardware and for large format hardware south of the Pioneer River.

A large format Bunnings or Masters is difficult to combine in a traditional centre. It can happen if the store reduces its GFA and alters its presentation. A store of the size proposed can be combined in a homemaker centre of bulky goods type uses. It can have the disadvantage that it is land consumptive. In such a centre it can be a useful anchor tenant. This fact becomes material because of the prospect of such a centre being incorporated in a future planning scheme at Ooralea. For this reason I note that a large format hardware store is not an anchor tenant in a homemaker centre of bulky goods type uses to the same degree as a supermarket may be in a traditional centre. In a bulky goods homemaker centre, the large format hardware store is a specific destination, visited about monthly and does not bring the benefits that a tenant which provides comparison shopping might bring.[53] There is no opportunity for this centre with the current planning scheme having regard to the existing centres. There is simply no place left for a large format Bunnings or Masters in the centres hierarchy as it presently stands, unless that place is at Mt Pleasant from which the existing Bunnings is relocating to Holts Road at Richmond and no place for such a store south of the Pioneer River.
[53]T4-41/30-47

I distinguish the nature and extent of the conflict identified in PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144. There, the proposal conflicted significantly with provisions in the planning scheme dealing with scale, appearance, integration and built form. There are no amenity impacts in the case before me. Secondly, the proposal involved building the largest single retail building in the Shire on industrial land only a short distance from the Shire business centre and it was held to involve a fundamental conflict with the strategies set out in the strategic plan for retail development. There was insufficient evidence to support a ground that the proposal had the potential to adversely affect the viability of the Shire business centre. I contrast that with the case before me where the consequences of the conflict will not only have no effect on the viability of other centres in the hierarchy, it will not have a significant impact on the existing hierarchy of centres or cause existing centres not to function properly. It seems to me that the nature and extent of the conflict in the PMM Group case was greater than the nature and extent of the conflict in the present case. In PMM Group, the loss of 1.8 ha of industrial land was found to involve conflict with the relevant scheme but it was not fundamental or significant. That is practically similar to my findings below in the case before me that an approval would mean the loss of land zoned Industrial (High Impact) for large scale retailing and create a conflict but the consequence of the approval would not result in an unacceptable loss of land zoned Industrial (High Impact).

I find that the nature and extent of the conflict with the current planning scheme, is not significant when considering that scheme’s retail hierarchy and network of centres and that this store would have no practical impact on these.

Does the proposed development conflict with the planning scheme for using the land for large scale retailing instead of preserving it for industrial use?

Within the planning scheme are several statements indicating a preference for preservation of industrial land. It is appropriate that I make some factual findings before analysing the degree of variance between the planning scheme and this approval.

Approval would result in the Bunnings site, currently preserved for industrial use, being used instead for “development of non-industrial uses such as retailing” within the meaning of those words in Part 5, Division 16(2)(f) of the planning scheme.[54] The proposed use would be “large scale retailing” within the meaning of those words in Part 5, Division 6 (2)(i)(i) of the planning scheme[55] and would not be used for “industrial activities and related services” within the meaning of those words in DEO (3)(c)(ix) or in Division 16 Overall Outcomes for the Industry (High Impact) Zone at (2)(a)(i).[56]
[54]See schedule to these reasons pg 6
[55]See schedule to these reasons pg 3
[56]See schedule to these reasons pg 6

The planning scheme aims to preserve industrial land for industrial purposes. So much is obvious from the provisions which follow. The issue is whether an approval which results in a failure to preserve the Bunnings site for industrial use and to allow it to be used for large scale retailing conflicts with the planning scheme.

The intent to preserve industrial land is given effect by the following provisions of the Planning Scheme:

1. DEO (3)(c)(ix)[57] seeks to protect the operational efficiency of industrial land, particularly for major industries, by retaining such land primarily for the establishment of industrial activities and related services, and encouraging new industrial activities in designated industrial locations on the basis that the necessary infrastructure is available or can be made available;
[57]See schedule to these reasons pg 2

2. Division 6 Overall Outcomes for the Mackay Frame Locality at (2)(i)(i) states, as an overall outcome, that industrial land is preserved for industrial uses in preference to others, particularly large scale retailing;

3. Division 16 Overall Outcomes for the Industry (High Impact) Zone at (2)(a)(i), including the Table of Specific Outcomes and Acceptable/Probable Solutions, which collectively provide to the effect, and recognise, that major industry is to be located in the Industry (High Impact) Zone, which is retained primarily for the establishment of industrial activities and related services; and that development of non-industrial uses, such as retailing, are not consistent with the overall outcomes for the zone in the precinct in which the Subject Land is located.

Of more assistance is the statement in Part 5, Division 16(2)(f)[58] that “development of non-industrial uses such as retailing, commercial, community and residential is not consistent with the overall outcomes for the zone in the Pioneer River (Urban)”.
[58]See schedule to these reasons pg 6

Bunnings draws attention to some equivocation within the planning scheme. Firstly, that the DEO (3)(c)(ix)[59] referred to above intends only that industrial land be retained “primarily” for industrial activities and related services. Secondly, that Division 6 s (2)(i)(i) expresses an intent to preserve land for industrial uses in “preference” to non-industrial uses.
[59]See schedule to these reasons pg 2

The appellant accepts that a mere statement of preference in a planning scheme is not, without more, sufficient to give rise to a conflict.

The appellant submits that the critical consideration with respect to industrial land is the statement in Part 5 Division 16(2)(f) that “development of non-industrial uses such as retailing … is not consistent with the overall outcomes for the zone in the Pioneer River (Urban)”. Against this, Bunnings submits that Division 16(2)(f) is within the same section as Division 16(2)(a)(i) and (ii).[60] The submission for Bunnings is that the overall outcome 16(2)(a)(i) repeats the equivocal intention that industrial land at Paget[61] be retained “primarily” for industrial activities and related services and overall outcome 16(2)(a)(ii) uses the equivocal intention that industrial land at Paget be “generally free from the constraining effects of inappropriate or sensitive activities either within or adjacent to such areas”.
[60]Schedule p 6.
[61]Within the Pioneer River (Urban) Precinct.

It seems to me that within Division 16 section (2), clauses (a)(i) and (ii) can be read sensibly with clause (f). Read together, the conclusion remains: the development of a non-industrial use such as retailing is not consistent with the overall outcomes for Paget.

Bunnings relied on an inconsistency with those provisions to justify a submission that the scheme does no more than create a preference for industrial use. In the relevant Industry (High Impact) Zone, a Hardware Store use is identified as a use without being described as “inconsistent”.[62] Section 5.6 of Division 2 of the planning scheme provides that if a defined use is not noted as an “inconsistent” use in a particular zone, it is a “consistent” use in the particular zone. A consequence of this is that the Hardware Store use, by inclusion in Table 5-1, is a “consistent” use in the Industry (High Impact) Zone.
[62]Ex 5 Div 3 Assessment Categories and Relevant Assessment Criteria for Making a Material Change of Use – Mackay Frame Locality, Table 5-1.

Bunnings submits that “the identification of the proposed use as “consistent” development is hardly evidence of an intention on the part of the Scheme to preclude such uses in the zone.” The Council relies upon the same provision. Table 5-1 includes most imaginable uses and describes very few as “inconsistent”. It is not possible to discern a planning intent behind the exclusion of a narrow range of uses as being inconsistent, and to describe practically every other use imaginable as consistent in a planning scheme that addresses the industry high impact zone.

Bunnings also submitted:

73 (b) …the range of code assessable uses in the zone include Bulk Landscape Supplies, …Outdoor Sales Premises, … and Warehouse. (Uses such as Bulk Landscape Supplies, Outdoor Sales Premises, and Warehouse have similarities with the type of Hardware Store, and Garden Centre, here proposed.)

The general provision by which, under the table of assessment, “Hardware Store” is said to be a “consistent” use, is inconsistent with the specific provision that a use “such as retailing…is not consistent with the overall outcomes for the zone…” It is sensible to read that general provision as yielding to the specific provision.

The general provision that Hardware Store is a “consistent” use can be read harmoniously with the general, but still more specific provision that, “industrial land is preserved for industrial uses in preference to non-industrial uses such as retailing particularly large scale retailing”. It may be only a preference, but it is a made more emphatic where the non-industrial use is large scale retailing. When one appreciates that the proposed hardware is not simply a hardware use but is also large scale retailing, it is sensible to read the identification of a hardware use as “consistent” development as being qualified by the preference at Part 5, Division 6 (2)(i)(i) because the preference is emphatically for industrial uses over large scale retailing. Though such an inconsistency does not necessarily mean that a Hardware Store use on the Bunnings site would be in conflict with the planning scheme, the loss of the land for use as a Hardware Store which is to be large scale retailing is starkly inconsistent with the preference at Part 5, Division 6 (2)(i)(i) of the planning scheme. Most hardware stores are 300 to 500m².[63] The GFA of the proposed Bunnings store is 12,891 m² comprising 8,733m² of warehouse, 2,314m² of plant nursery, 1,844m² of timber trade area and a landscaped carpark with 338 spaces.
[63]T6-42

Though the scheme includes the identification of the proposed use as “consistent”, in the context of the other inconsistent provisions to which I have referred, that identification does not impeach my finding: The decision to approve would conflict with the planning scheme for using the Bunnings site for large scale retailing instead of preserving it for industrial uses.

The nature and effect of the loss of the subject land for industrial uses

Two specific issues in the appeal are whether the proposed development would result in unacceptable loss of land zoned Industrial (High Impact) and whether it would jeopardise the economic development, sustainability and intended role of the Paget precinct.

Strategically located industrial land is an important resource at Mackay. It is stated in the Regional Plan:[64]

“Strategically located land for existing and future business and industry use should be protected from inappropriate use and the encroachment of incompatible land uses. Any proposal that could erode the future use of such land for business and industry purposes should be reviewed against the long-term strategic needs of the region, and requires significant justification to support its development.”

[64]Ex 6 at para 6.2.1 at page 93

As the accompanying Notes state:[65]

“Strategically located land and facilities in areas with good road, sea port, airport and rail access should be secured for business and industry servicing the winder [sic] region, and importing and exporting goods and services outside the region.
Mackay provides a unique economic role within the region in terms of servicing the mining services sector and agricultural sector, and is strategically positioned to deliver on regional industrial land requirements, given its access to labour and an active industrial and land development market. Despite the majority of regional economic output being generated in the Isaac subregion, the majority of industrial activities that support mining operations are sourced from Mackay.”

[65]Regional Plan, Ex 6 at page 94

It is further observed in the Regional Plan:[66]

“It is projected that significant additional land capacity will be required in Mackay in the medium to long term for large footprint industries that provide for the mining services sector and the emerging resource sector in the Bowen and Upper Galilee basins.”

[66]At page 95

Mr Reynolds opined[67]that planning for industrial uses is a very important component of the urban planning process, because critical constraints exist in locating industrial uses, having regard to amenity and transport implications. The submissions of Council and of Bunnings do not take issue with that proposition. I accept it.
[67]First Joint Planning Report – Ex 4 Tab 5, p 93 par 6.1.6 and Reynolds at T7-23 L 1-10

The subject site is of high strategic value by virtue of its location. It is adjacent to the railway freight yards; adjacent to both the Bruce Highway and the Peak Downs Highway; and near the airport. The Peak Downs Highway is the most direct B-double route to Moranbah and the Bowen Basin. It provides the most direct access to the Central Queensland Mining developments that are collectively worth (existing and projected) hundreds of billions of dollars and which are the catalyst for major economic growth in the region.

Because the subject land is at Paget, it arguably has some special significance because Paget is the only designated “high impact” industrial area for Mackay. Whether that special significance attaches to the subject site is an issue which emerged in submissions.

As a consequence of the subdivision of the parent parcel, a substantial proportion of the lots within the former Lot 28 have an area of less than 3,500m². That is at odds with Specific Outcome P1 for the Zone[68] which intends that industrial development in the Zone comprise “mostly” larger scale industry (i.e. requiring greater than 3,500m² site area; or requiring additional infrastructure; or has an impact that is likely to require buffering or restriction on hours of operation.)
[68]Planning Scheme, p5-58 – Ex.5, p83

Further, the subject land is somewhat poorly located for “high impact” industry as it is on the edge of the designated high impact industrial land, close to the low impact industry land. Mr Reynolds considered that the area had more “general industry” character rather than a heavy industry one.[69] He also agreed that the prospects of obtaining approval for a noxious, offensive or hazardous industry on the land were low.[70]
[69]T7-28/9-13
[70]T7-50/1-8 other than perhaps a food processing facility

The subject land and the Bunnings site within it are somewhat isolated for traditional high impact industrial uses. Mr Forsyth envisaged that service industry activity involving distribution, small workshops and offices with fairly contemporary design would be more likely.[71]I accept that is more likely.
[71]T3-71/5-55

It follows, despite the “high impact” designation of the Bunnings site and of the subject land, neither is likely to be used for a “high impact” use.

The Bunnings site is 2.95 ha in area, being 1.3% of the available vacant industrial land in Paget. Bunnings and the Council submit the site is so small a proportion of the land at Paget and elsewhere and there is sufficient further vacant industrial land in prospect that the Bunning’s site’s loss to industrial development is acceptable.

The Regional Plan records that:

“There is sufficient undeveloped land at Paget to meet short-term industry demand. Further opportunities for industrial growth have been identified directly south of Paget and south of Bakers Creek at Rosella.”[72]

[72]Regional Plan – Ex.6, p25, right column, third para; see also pp110-111

The Policies within the regional plan include “monitor, manage and deliver an adequate supply of industrial and commercial land” and “investigate the viability and suitability of sites for mining sector support industries … closer to the mines”.[73] The plan provides:

“Additional business and industry lands have been identified adjacent to the Mackay urban area to support the region’s future economic and population growth. This will enable the region to maximise its locational advantages to national and regional transport networks, regional level services, and a ready workforce.”

[73]Regional Plan – Ex.6, Policies 6.2.11 and 6.2.12, p.94

Those “lands” include both the Rosella Industrial Development Area and the longer term Rosella Identified Growth Area.

Mr Leyshon noted that there were significant potential sources of additional industrial land to service the region in the future. One of them, Rosella, had been identified by the Regional Plan and could provide some 713 hectares.[74] Mr Duane also considered there to be ample industrial land to meet market demand:
[74]Leyshon Report – Ex.9, para 4.5, pp15-16

1. there is close to 282 hectares of available industrial land within Mackay, with another 210 hectares of rural vacant industrial land within the port. Combined, they provide some 491 hectares;

2. that could be compared with the take up rate over the next 10 year period of 20 to 30 hectares per annum as forecast by AEC;

3. allowing for some industrial demand to be met by the port land, there would be more than 10 years supply based upon a take-up rate of 30 hectares per annum – a rate higher than the historical take-up;[75]and

4. planning is presently being undertaken to identify further land for future industrial development in Mackay, and should be available when it is needed in around 10 years time.[76]

[75]T4-24/13-25

[76]Duane Report – Ex.14, para 68, p26

Two economic experts agree that, from an economic perspective, any impact on the loss of Industry (High Impact) zoned land may be considered appropriate.[77] Mr Malkiewicz disagrees. Among other things, he was concerned that the take up rate for industrial land would be double the estimates of others.
[77]Par 9 of the Joint Economic Report Ex 4 tab 4 at page 41

As far as demand is concerned, Mr Malkiewicz’s suggested a take-up rate of between 40 to 50 hectares per annum. His suggested rate was more than double the take-up rate estimated by an AEC study to which the economists referred,[78] and with which Messrs Leyshon and Duane agreed.[79] Mr Leyshon contrasted the detailed nature of that AEC study with Mr Malkiewicz’s which lacked detail.[80]Mr Malkiewicz’s forecasts relied upon the highest demand scenario, and the lowest supply scenario. There was an additional area of approximately 35 hectares of industrially zoned land which was available, but not included in Mr Malkiewicz’s calculations.[81]
[78]see eg. Leyshon Report – Ex.9, para 4.3, p15
[79]Duane – T4-23/42-50
[80]T 2-53 l 30
[81]T4-67/32-45

I accept that the evidence given by Messrs Leyshon and Duane about take up rates for industrial land is more probable.

In terms of the impact upon the supply of industrial land, the loss of the Bunnings site, occupying such a small proportion of the total, would not increase the need to appropriately plan for future industrial areas within the Mackay market.[82] I accept that from an economic perspective, any impact on the loss of Industry (High Impact) zoned land may be considered appropriate.
[82]Duane, Ex.14, para 69

Mr Malkiewicz agreed that the proposed site would represent 1.5% of the existing available vacant industrial land at Paget alone. Put another way, it represented only 2 weeks additional “supply” based upon his suggested maximum take-up rate.[83]
[83]T6-68/44

Both the Council and the State Government have already identified areas for future industrial growth, particularly with an emphasis on heavy industrial activities.[84]
[84]Schomburgk – T4-68/29-40; T4-69/1-10

Mr Reynolds said in evidence,[85] if the opinions of Mr Schomburgk and Mr Forsyth (that the loss of the Subject Land for industrial development was acceptable because of its small area) were accepted, it would follow that:

“No development would warrant significance in terms of the loss of industrial land. No development could be of a high enough per cent to reach any sort of threshold on that test alone to be of concern.”

Mr Reynold’s point is relevant but not conclusive. The proportion that the land is of the bank of available industrial land of land is relevant to the grounds for or against an approval.

[85]T7-22 L 1-L 30

Mr Reynolds’ analogy[86] with respect to the loss of good quality agricultural land was not persuasive. Unlike good quality agricultural land, good quality industrial land can be and will be created. Sustainable economic planning should allow for 10 to 15 years supply of industrial land. Mr Duane reported in December 2011 that there is ample supply of industrial land throughout Mackay to meet demand for ten years, that appropriate planning was then in place for further industrial land to be located in Rosella. I accept that evidence as probable.
[86]T7-22 L 20-30

The appellant’s written submissions[87] emphasised key conclusions from the AEC Report which the parties accepted should be treated confidentially. The conclusions generally were about the supply deficit for industrial land for Mackay on the assumption that no additional zonings take place. The assumption of no additional zonings taking place is against the evidence.
[87][66]-[68]

I am satisfied that the decision to approve would not result in an unacceptable loss of land zoned Industrial (High Impact). However, the loss remains a minor matter to be weighed with other obstacles for Bunnings in satisfying its onus.

What grounds are relied upon to justify the development despite conflict?

The “grounds” which may justify the decision which is in conflict with the planning scheme are matters of public interest and do not include the personal circumstances of Bunnings or the appellant.[88]
[88]SPA schedule 3 “grounds”

Further guidance as to what the legislature envisages by way of “grounds” is contained in “Statutory Guideline 05/09” made under s759(1)(a) of the SPA. It provides non-exhaustive guidance as to what may be considered in determining whether there are sufficient grounds to justify a decision that conflicts with a relevant planning instrument. The examples relied upon by Bunnings are:

“Relevant instrument is out of date
The relevant instrument is out of date due to its age or changing circumstances in the area and the proposal reflects or responds to those changed circumstances.
…
Example 2 – The Planning Scheme is due for review and does not reflect current planning trends and principles, such as … demographic shifts”
Relevant instrument is incorrect
The relevant instrument is incorrect in terms of its substance or underlying assumptions for the circumstances of the particular proposal.
Example 1 – A Planning Scheme drafted on low growth or no growth assumptions is now experiencing unforeseen development pressure as a result of a new major economic development project being established in the area.
…
Relevant Instrument Inadequately Addresses Development
The type of development proposed is not adequately addressed by the relevant instrument.
…
Relevant instrument does not anticipate specific or particular development.”

The Guideline’s examples also refer to an “exceptional and urgent need” for a proposal. Such a need is surely relevant. The Guideline does not expressly require that level of need to be established before need can be considered as a relevant ground. No party suggested that on the issue of need that Bunnings must fall within the Guideline by establishing an “exceptional and urgent need” for a proposal. Bunnings submitted that need “is not required to be pressing, critical, widespread desire or anything of that nature. It is a matter of balance.”

Mr Reynolds asserted that the need would have to be “overwhelming and pressing now” such that “the community will be severely disadvantaged if the proposal does not proceed”. Such a dire need would surely justify the development in spite of the conflicts I have found. However, I accept the submission of Bunnings that such a level of need is not based upon any express requirement within the planning scheme or within the SPA or within authorities relied upon by the appellant.

Bunnings and the appellant each relied upon authority for the meaning of “need”. Each relied upon Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APA 165 at 170. There, Carter QC DC J wrote:

“… The basic assumption must be that there is in existence at the time of the application a latent unsatisfied demand on the part of persons affected by the planning scheme which is not being met at all nor being adequately met by the scheme in its present form. If the need can be met by the proposal for rezoning and is therefore of advantage to the community and does not thereby deny or otherwise affect the satisfaction of community need in other respects to its disadvantage, the rezoning can be justified because it is consistent with the community will.”

On the other hand, proof that an approval would provide an attractive additional choice for consumers does not mean that consumer’s needs are not presently adequately catered for.[89]
[89]Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337 at 7 and on appeal (2001) 116 LGERA 350 [19] – [21] and applied in Coolham Properties v Maroochy Shire Council [2007] QPELR 400 by Dodds DCJ at [57].

Consistently with those authorities, relevant inquiries in this appeal include whether, at the time of the application, there was community desire for large format hardware stores of the Bunnings variety which was a latent, unsatisfied demand by those south of the river, whether it was not being adequately met by the scheme, or whether the facilities were adequate such that the proposal does no more than give consumers a choice which they may choose to avail themselves of; secondly, whether the approval would affect the satisfaction of community need in other respects to its disadvantage.

An overview of the grounds relied upon by Bunnings to justify the approval despite the conflicts is:

(a) the planning scheme is due for review in 2014 and has been overtaken by events. That is primarily as a consequence of the fact that the underlying assumptions of population growth upon which the scheme was based at the time of its commencement in 2006 have proven to have been substantially underestimated; I accept that submission.
(b) the failure of the planning scheme to cater for the needs of the unanticipated population is reflected by the Council’s recent approval of various large scale retail developments on land which is not within the Commercial Zone, or within the network of centres, and which involved what Mr Reynolds accepted were clear and high levels of conflict with the planning scheme; and also by the manner in which the Industrial (High Impact) zoned land has been developed; I accept these propositions.
(c) there is a need for the proposed development:
(i) large format hardware stores are a relatively recent, and very popular, phenomenon. They enjoy tremendous popularity with the public. More particularly, Bunnings is at the forefront of the phenomenon and, as Mr Malkiewicz agreed, “people want to go to Bunnings”; I accept this submission. Aside from economic need, I find that there is a latent, unsatisfied demand by those south of the river for a large format store of the type proposed and that approval does more than provide an attractive additional choice for consumers.
(ii) in its current form the planning scheme does not adequately cater for such stores to meet the need of the residents of Mackay and the region. That is evidenced by the recent approval of the “Masters” centre and the expanded Bunnings to the north of the River. There is no existing designated centre on the southern side of Mackay within which such a store can be located; I accept this submission.
iii) the economists agreed upon the main trade area (MTA) for the proposal. It is the area from which the proposal would draw most of its sales. The MTA lies south of the Pioneer River. The River forms a “barrier” to north-south movement in Mackay. That is supported by both expert and local evidence. Mr Reynolds acknowledged that “there exists an imbalance in Mackay regarding where people work and live, such that traffic congestion does occur and pressure exists upon the bridge crossings of the river”; I accept this submission.
(iv) a large format hardware store such as proposed serves a trade area population of about 40,000 people. The agreed population of the MTA in 2011 was 79,980 people. It will also increase to 88,200 people in 2014. That MTA population is currently served only by Woodman’s Mitre 10 and Porters CBD (with retail floorspaces of approximately 3,000m² and 8,000m² respectively); I accept this submission.
(v) the floorspace provision in the MTA may be contrasted with that of the tertiary trade area north (TTA North). There the 2014 population of 70,440 will be served by nearly 34,000m² of hardware in an expanded Bunnings (15,756m²); a Woolworths “Masters” (13,587 m²) and a new Porters (4,500 m²); I accept this submission.
(vi) if the proposal were not approved, the MTA would in fact have an under-supply of some 8,433m² in 2014. Because I accept the evidence of Mr Duane and Mr Leyshon relating to this aspect of economic need, I accept this submission.

(d) the site is ideally located. It is conveniently accessible to the catchment it is intended to serve. It also sits at the periphery of the Paget industrial estate, and provides a buffer between the medium-heavy industrial uses in the majority of the estate to the light industry and residential uses to the north of Archibald Street; I accept this submission.
(e) the design, scale and use of the proposal is compatible with industrial activity. I accept this submission. It has more in common with industrial uses than with conventional retail uses, in terms of appearance, activity and impacts, and accordingly would be less appropriate to locate in a designated retail centre; I accept it appears more like an industrial use and accordingly would be less appropriate to locate in a designated retail centre, but distinguish designated retail centre from a Homemaker Centre where the proposal could be appropriately located;
(f) the scale of the proposal is such that it would take up valuable “centre” land that would otherwise be available for more conventional retail uses; I accept this submission but note that the scale of the proposal would be compatible with a Homemaker Centre;
(g) there is a complete absence of any amenity or traffic impact associated with the proposal. Whilst an absence of impact of itself may be a neutral ground, it is a matter of public interest that the community need can be met by the proposal on this site in a manner which does not create impacts; and
(h) the proposal will deliver significant employment with an estimated 130 new jobs, together with an additional 160 jobs during construction. I accept this submission.

The draft planning scheme upon which the parties made submissions after evidence concluded is not identical with the published Draft Mackay Region Planning Scheme (“the Draft”). In respect of Ooralea’s proposed Homemaker Centre it seems that the Draft’s proposal is in practical respects similar. From the Part 3 Strategic Framework at 3.2.2 one reads that the development area of Ooralea is developed in accordance with a local plan, sequenced infrastructure plan and that the area provides a mix of housing types, a major centre, a specialised centre, community facilities and employment opportunities in industrial and commercial areas. At 3.2.3 I note “the centres network provides a hierarchy of principal, major, district, local and specialised centres … Out of centre development is discouraged and avoids commercial strip development along roads. … The major centres are sub-regional activity nodes that provide a high diversity and concentration of retail, commercial, offices, residential, administration and health services, community, cultural and entertainment facilities … the major centres in the Mackay urban area are located at Mount Pleasant, Ooralea (south of the Central Queensland University), and Rural View and the southern portion of the Mackay region is served by a major centre in Sarina … the Ooralea major centre’s catchment includes Mackay’s southern and western suburbs, Walkerston, Marian, Mirani and rural communities to the west and south-west. The Rural View major centre’s catchment includes Mackay’s northern beaches … specialised centres in the Ooralea growth area and Richmond investigation area provide opportunities for a range of commercial development focussing on providing bulky household goods and large showrooms. The specialised centres have a unique single-purpose function and do not compete with other centres in the centres network. The built form and scale of development is integrated throughout the centre and provide active and articulated building frontages that address streets and public spaces …”

Also within Part 3 Strategic Framework of the Draft there is provision 3.3 Settlement Pattern which relevantly provides:

“3.3.1 Strategic Outcomes
…
(3)The Mackay City Centre is the principal mixed-use centre and is complemented by a network of major, district, local and specialised centres in the region …”

At 3.3.11 the Draft deals with the network of centres, specific outcomes and land use strategies in relation to the network of centres. Specific outcome (10) is “Specialised centres for household bulky goods and hardware are appropriately located within the Ooralea growth area and Richmond investigation area.”

I note also that at 3.9.2.1 a specific outcome provides:

“(3)The Paget industrial area and potential future Rosella industrial area is developed for major and high impact industries servicing the expanding mining industry and resource sector by providing large lot sites with connectivity to the freight road network, air and seaports and is protected from encroachment by sensitive uses. In addition to the dominant high impact industrial uses, Paget provides low impact industrial uses servicing the Mackay region.”

With respect to retail development, at 3.9.6 where the element of supporting appropriately located retail development appears, a specific outcome 3.9.6.1 is:

“(1)Retail activity is concentrated within the network and hierarchy of centres, is appropriately located and accessible in serving the needs of the community.”

During the course of evidence and after the close of evidence the parties led evidence of or made submissions about a “2009 Retail and Commercial Centre Strategy”, a draft Local Area Plan for the Ooralea area, a Draft Centres Strategy and the earlier draft planning scheme. The parties addressed upon them on the hypothesis that the court might give weight to them. A consequence is that the parties have coincidentally anticipated material parts of the Draft Mackay Regional Planning Scheme and addressed upon them. The parties have not applied to supplement their submissions to address on the Draft Mackay Regional Planning Scheme since its publication. I have not required further assistance on this aspect as, upon a review of the Draft, I regard the submissions to date as sufficient and a decision is overdue.

Mr Reynolds nicely articulated the planning arguments against approval during cross-examination. Excerpts of his evidence are:

“… The maintenance of a consolidated centre’s network is of upmost importance. It’s of high importance in the existing planning scheme, and that’s reinforced by the regional plan. … Under the existing planning scheme… If there is a need for additional large format stores… The existing planning scheme has trouble accommodating those things. However, the maintenance of a centre’s network is the most important thing, and if the draft centre strategy, and the draft Ooralea local plan have identified a way in which a robust centre strategy can be put forward, then the approval of the Bunnings at Paget will dilute that network to the detriment of the community interest. It’s about consolidation versus dilution.[115]… It is… more… a question of philosophy than a question of physical impact… and… if the Local Government is going about a forward planning exercise… it is appropriate to have regard to whether that ought to be able to be followed if possible. So it’s a question… whether the need for this development over weighs and is pressing enough for this development to proceed now.”

[115]T7-58.

The appellant’s submissions stressed the advantages of co-location of retail outlets. I accept that there is a public interest consideration to be balanced against those which support approval. Co-location within centres enables the community to have greater convenience. Centres enable businesses to develop synergies. A visit to one business may lead to a visit to its neighbour. This enables centres to be vital economically which is good for maintaining consumer choice. A trip to a centre can avoid unnecessary trips to many locations. They consolidate uses so that they are not spread about in a way that might take up other uses.

The appellant submitted that if there is a need for a large format Bunnings, it ought to be located in the proposed Homemaker Centre at Ooralea; that the proposed Homemaker Centre represents a considered response by the Council and a further step in the evolution of the centres’ hierarchy; it is desirable that a large format hardware store be included in the proposed Homemaker Centre at Ooralea as is occurring at Richmond; if there is an economic need for the proposed development, it is not so pressing as to warrant approval now rather than a deferral “to enable a Bunnings Warehouse to be incorporated in the Specialised Centre at Ooralea, in due course”; sound planning encourages the consolidation of retail facilities in centres and there will be a place capable of accommodating a large format hardware store such as that proposed; the appellant does not rely on the planning intention for Ooralea as demonstrating the existence of a “better site” than the subject land but relies on those intentions as showing that in the foreseeable future a new planning scheme will include an area appropriately designed and located to accommodate the subject proposal; that future availability means that, regardless of economic need, no planning need is demonstrated for the approval.

All parties seem agreed that it is not proper for this court to consider whether a better site exists for the proposed use and that it is the function of this court to decide whether approval should be given for the particular use on the particular site. I note that the issue of a best site was trespassed into in evidence. The evidence of Mr Leyshon was to the effect that that the proposed site is better located for its capacity to service the south and south west trade areas as well as Ooralea than the site of the Ooralea Homemaker Centre in the Draft.[116]There is no evidence to suggest that Bunnings would incorporate a warehouse at Ooralea, and there is some evidence that it may not. I can make no finding that it would. I can make no finding that if there is to be a large format hardware it is desirable that it be included in the proposed Homemaker Centre at Ooralea. There was insufficient evidence.
[116]T2-43

The appellant supports its argument that the proposed Ooralea Homemaker Centre remains relevant by reference to Glenella Estates v Mackay RC (2010) 180 LGERA 226. I note that there was no Coty point arising because there was no draft planning scheme or any part of it and no draft planning scheme in the course of preparation. His Honour Judge Robin QC relevantly noted:

“41 … Further, although there is no Coty point emerging from the planning activity presently underway for Ooralea, my view is that the court can and should take into account the probabilities respecting what will eventuate at Ooralea and when. The importance of that, in the present context, is that it is probable that residential land will be made available at Ooralea to meet the established need for more residential land – and in a timely way, well within five years. …”

I accept that I should have regard to the Draft to determine whether approval would frustrate or sabotage a draft planning strategy and also to determine whether council is addressing the problem that there is no centre capable of accommodating the large format hardware proposed.

The degree of weight which I should attach to the Draft and the degree of importance I should give to the fact that a Specialised Centre at Ooralea would eventually provide space sufficient to satisfy a planning and economic need for a large format hardware and the degree of importance I should give to the philosophy behind collocation in the proposed Homemaker Centre depends on the facts of this case.

Experts have given opinions about the impact of the proposed Bunnings store upon the development of the proposed Homemaker Centre at Ooralea. Mr Duane opined that it will have no impact on the ability for the development of the Homemaker Centre and that there is a substantial range of other bulky goods facilities which would form a key component of any such centre.[117] Mr Schomburgk opined that approval does not impact on the prospect of developing a Homemaker Centre at Ooralea.[118] Mr Reynolds opined that a Bunnings would be a good anchor tenant but agreed that approval would not destroy any prospect of a Homemaker Centre at Ooralea and there would be a range of other potential anchor tenants. Recalling the relevant words of the appellant’s issue (f) in the appeal, I am satisfied that the proposed development will not have a significant adverse impact on the planned facility at Ooralea.
[117]Exhibit 14, para 62, p 23.
[118]T5-20/29-39.

With respect to the provisions of the earlier draft planning scheme relating to industrial land to which Bunnings and the appellant each drew my attention, I note that the provisions in the published Draft are fuller and differently worded. In addition to 3.9.2.1 Specific outcome (3) set out above, I have also had regard to the provisions of the Draft: at page 3-4 commencing “The Rosella Investigation area…”; at 3.2.3 and in particular at page 3-10; on pages 3-14 and 3-15 “3.3.5.1 Specific outcomes” (4) and the related “3.3.5.2 Land use strategies” (3) and they have not altered my view one way or the other.

Conclusions

The approval is in conflict with the planning scheme in two respects. The conflict with the planning scheme’s centres hierarchy has no practical effect on that hierarchy. The loss of industrial land is a small proportion. Its loss is acceptable having regard to its unsuitability for high impact use and as there has been adequate forward planning for supply of further industrial land when needed. There are grounds to justify the decision, despite the conflicts. The main trade area, south of the Pioneer River will have an undersupply of retail hardware floorspace of 8,433 m²in 2014. Approval of the proposal will meet that economic need with a large format hardware which meets also a present planning need. It raises no traffic or amenity issues. It will result in an oversupply of hardware retail floorspace of 4,459 m²in the main trade area. Approval is not likely to cause unacceptable impacts. If I were confined to considering the planning scheme, I would regard the grounds as sufficient to justify the conflicts with the planning scheme particularly as there is no centre capable of accommodating the proposal. It is appropriate to have regard to the Draft Mackay Regional Planning Scheme. Approval does not sabotage future planning at Ooralea for a Homemaker Centre. It will have no impact on the ability for the development of the Homemaker Centre. There is a substantial range of other bulky goods facilities which would form a key component of any such centre and a range of other anchor tenants. The impact on the centres hierarchy of the proposed planning scheme is more philosophical than real.

The grounds are sufficient to justify the decision to approve notwithstanding the conflicts with the planning scheme.

Subject to conditions of approval, the appeal should be dismissed and the application should be approved. As the parties need an opportunity to finalise the conditions, the appeal will be adjourned to enable finalisation of conditions to occur.

SCHEDULE TO REASONS

RELEVANT PROVISIONS OF THE PLANNING SCHEME

Relevant provisions of the Planning Scheme other than Part 1, Division 2 – Strategic Framework (with underlining added for emphasis) include:

1.Part 3, Division 1
3.1Desired Environmental Outcomes[119]
[119]Ex 5 at pages 21-25.
(1)The Desired Environmental Outcomes are based on ecological sustainability established by the IPA and are the basis for the measures of the planning scheme.
(2)The Desired Environmental Outcomes are to be read as a whole. Each Desired Environmental Outcome is to be achieved to the extent practicable having regard to the other Desired Environmental Outcomes.
(3)The Desired Environmental Outcomes for the City of Mackay area are as follows:
(a)…
(b)...
(c)Economic Development
(i)..
(ii)…
(iii)...
(iv)A network of centres is established and maintained according to a hierarchical arrangement of roles and functions and meet the needs of the population, and includes the following elements, as shown on the Information Map – Network of Centres.
(A)the Mackay City Centre (including a core area and a frame area) as the principal centre for all multi-purpose centre activities in the City and the region;
(B)the Mt Pleasant Sub-Regional Centre, including Greenfields, Sams Road and Heaths Road, as the second major focus for shopping, commercial and entertainment in the City, functioning as a support role to the City Centre;
(C)The Rural View Major Neighbourhood Centre as the third major focus for shopping, community and commercial needs in the City;
(D)the neighbourhood centres, including Andergrove, Bucasia, Rural View and Walkerston, providing for weekly or high-frequency shopping, community and commercial needs; and
(F)a mixed use centre at North Mackay; and
(G)the local centres, including the small convenience centres at Bucasia, Blacks Beach, North Mackay, Mt Pleasant, Slade Point and West Mackay.

(v)the growth of centres occurs in step with demonstrated community need, recognising the role and function of the other centres within the network of centres.
(vi)retail and commercial activities outside a centre identified within the network of centres are limited to premises with a size and function consistent with the provision of local facilities.
(vii)…
(viii)…
(ix)operational efficiency of industrial land, particularly for major industries, is protected by:
(A)retaining such land primarily for the establishment of industrial activities and related services;
(B)encouraging new industrial activities in designated industrial locations on the basis the necessary infrastructure is available or can be made available efficiently and equitably;
(C)retaining the major industrial areas free from the constraining effects of inappropriate or sensitive activities either within or adjacent to such areas; and
(D)servicing with safe and effective transport infrastructure, such as the sea port, the airport, the rail network and the State and national highway system.

(x)A transport network is maintained in functional corridors unconstrained by incompatible or inappropriate activities, servicing the major industries and other major employment and activity centres.” (footnotes excluded)

(e) Infrastructure and Urban Growth
(i)The pattern and rate of urban development meets, in a timely manner, the needs of the Mackay Community with respect to housing, commercial services, industrial activities, recreation and cultural pursuits, and includes the efficient provision and use of urban infrastructure.
(ii)The sequence of urban growth within the City is based on achieving the most efficient and equitable use of land and making greatest use of the existing network, transport and community infrastructure.

2.Part 5, Division 2 – General Provisions for Assessment Tables
5.6Consistent and Inconsistent Uses in Each Zone
(1)A defined use for use class that is an inconsistent use in the particular zone is noted under each relevant zone in Table 5-1.

(2)If a defined use or use class is not noted as inconsistent use in a particular zone, it is a consistent use in the particular zone.

3.Part 5, Division 5 – General Provisions for the Mackay Frame Locality
5.8 Compliance with the May Frame Locality Code[120]
[120]Ex 5 at page 46.
(1)Development that is consistent with the following complies with the Mackay Frame Locality Code:
(a)the specific outcomes for the locality Division 7; and
(b)the specific outcomes for the relevant zone (Division 8 to Division 20).

4.Part 5, Division 6 – Overall Outcomes for the Mackay Frame Locality[121]
[121]Ex 5 at page 47-51.

(1)The overall outcomes for the Mackay Frame Locality Code are the purpose of the code.
(2)The overall outcomes for the Mackay Frame Locality are the following:
…

(h)new commercial uses are located in the Commercial zone or the Village zone in accordance with the overall outcomes of those zones and the network of centres referred to in the Desired Environmental Outcomes and illustrated, for information, on the Information Map – Network of Centres.
(i)industrial land is:
(i)preserved for industrial uses, in preference to non-industrial uses such as retailing particularly large scale retailing, residential and community uses;
(ii)buffered with landscaped areas of a suitable width, from incompatible activities, such as residential, commercial and community facilities; and
(iii)industrial uses which are relatively small scale and have low impact are located within the Industry (Low Impact) zone whilst those industrial uses which are larger in terms of site requirements, infrastructure requirements or impact, are situated in the industry (High Impact) zone.

(w) new development in the Locality is:

…

(iii)for intense forms of activity such as centres or major industries, situated at key locations within the road transport network;

(3)In addition, overall outcomes for the Pioneer River (Urban) precinct are the following:

(a) the Pioneer River (Urban) precinct accommodates:
…
(v)the dominant industrial service functions for the City and the region located in the Paget and South Mackay industrial areas;

(c)commercial activity occurs within the boundaries of the commercial zone and accords with the network of centres described in the Desired Environmental Outcomes and as shown on the Information Map – Network of Centres, and includes
(i)convenience services which meet the needs of existing nearby residential and visitor accommodation areas; and
(ii)specialised activities servicing the needs of highway traffic and short-stay visitor accommodation only where the traffic capacity and amenity of adjoining properties is maintained.

5.Part 5, Division 6 – Specific Outcomes and Probable and Acceptable Solutions for the Mackay Frame Locality[122]
[122]Ex 5 at page 54.

Specific Outcomes Acceptable / Probable Solutions

Assessable Development

P1 Commercial development is located in the commercial zone and does not detract from the network of centres referred to in the Desired Environmental Outcomes. S1 No solution specified.
6.Part 5, Division 7 – Specific Outcomes and Probable and Acceptable Solutions for the Mackay Frame Locality
(1) The overall outcomes for the zone are the purpose of the code.
(2)The overall outcomes for the Commercial zone within the Pioneer River (Urban) precinct are the following:
(a)commercial facilities and services are small-scale and located in an existing centre which:
(i)has a floor area significantly less than 2,500m2 GFA;
(ii)does not provide the complete range of functions anticipated for a local centre as established in the network of centres referred to in the Desired Environmental Outcomes; and
(iii)consists of a re-development of or addition to an existing premises but does not change the role and function of the existing centre.

...
(5)Specific outcomes and acceptable/probable solutions for the Commercial Zone in the Mackay Frame Locality are as follows:

Specific Outcomes Acceptable / Probable Solutions

Assessable Development

Pioneer River (Urban) Precinct

P1     New shopping facilities in the Commercial zone are limited to small scale convenience shopping and other convenience based commercial facilities in West Mackay.

S1   New facilities in a centre or the combination of existing and additional facilities in a centre comply with the following:

(i)     Additional gross floor area does not exceed 500m²;

(ii)     Additional retail floor area does not exceed 250m²; and

(iii)     Access is provided directly to either an arterial or sub-arterial road

7.Part 5, Division 16 - Overall & Specific Outcomes and Probable & Acceptable Solutions for the Industry (High Impact) Zone in Mackay Frame Locality[123]
[123]Ex 5 at pages 82-83.

(1) The overall outcomes for the zone are the purpose of the code.
(2)The overall outcomes for the Industry (High Impact) zone are the following:
(a)Major industries are located in the industry (High Impact) zone at Paget and Bakers Creek and are:
(i)retained primarily for the establishment of industrial activities and related services;
(ii)generally free from the constraining effects of inappropriate or sensitive activities either within or adjacent to such areas;
(iii)located on the arterial road network and in close proximity to the rail network; and
(iv)removed from urban areas to avoid environmental impacts such as diminished air and water quality, acoustic conditions, operational hazards and risks, disruptions to infrastructure services, and heavy vehicle traffic.

(f) Development of non-industrial uses such as retailing, commercial, community and residential is not consistent with the overall outcomes for the zone in the Pioneer River (Urban) precinct.

(3)The specific outcomes and acceptable/probable solutions for the Industry (High Impact) Zone in the Mackay Frame Locality are as follows:

Specific Outcomes Acceptable / Probable Solutions

Assessable Development

P1   Industrial development in the Industry (High Impact) zone will comprise mostly:

(i)        larger scale industry (i.e. requiring greater than 35002 site area); or

(ii)       requiring additional infrastructure such as road widening, power supply; or

(iii)      has an impact that is likely to require buffering or restrictions on hours of operations.
S1     No solution specified.

8.Part 9, Division 22 – Retail and Commercial Code[124]
[124]Ex 5 at pages 126-128.
9.100 Compliance with the Retail and Commercial Code
(1) For assessable development, compliance with the Retail and Commercial Code is achieved when development is consistent with the specific outcomes in Table 9-21.2.
9.101 Overall Outcomes for the Retail and Commercial Code
(1)The overall outcome is the purpose of the Retail and Commercial Code.
(2)The overall outcomes sought for the Retail and Commercial Code are the following:
(a)The establishment of retail and commercial uses complies with the location of Centres as identified in the network of centres in the City and includes the following elements:
…
(b)Retail and commercial development in the City:
(i)is situated within a designated centre and is accessible and convenient for all members of the community;
…
(iii)is attractive, functional, safe and serves to reinforce the role of the designated centres as community foci and complements the scale, intensity and character of the surrounding activities;
(iv)is established on suitable premises appropriate in their scale, intensity and character to the intended role and function of the designated centre;
…

(e) Retail and commercial uses do not occur outside the designated centres.

(footnotes excluded)

9.9.102 Specific Outcomes, Acceptable Solutions and Probable Solution for the Retail and Commercial Code
(1)The specific outcomes sought for the Retail and Commercial Code are included in Column 1 of Table 9-21.2 and the acceptable solutions/probable solutions are in Column 2 of Table 9-21.2.
9.103Definitions

“Local Facilities” are defined as retail and commercial facilities which service the daily convenience needs of a local trade catchment containing no more than 2,500 households.
Table 9-21.2 Specific Outcomes and Acceptable and Probable Solutions for Retail and Commercial Code
Retail & Commercial Development

Specific Outcomes Acceptable / Probable Solutions

Assessable Development

P1 Retail and commercial activities outside a designated centre are limited to premises with a size and function consistent with the provision of local facilities. S1 For activities located outside a designated Centre, the premises has a maximum gross floor area of 25m2 and a maximum building height of 8.5m.
10.Schedule 1 - Dictionary

12.3     Administrative Definitions[125]
[125]Ex 5 commencing at page 131.
“High Impact Activities/Activity Areas/Activity Sites” means any of the following uses and activities:
(i)        Abattoir;
(ii)       Sugar mill;
(iii)      Extractive industry;
(iv)      Mining;
(v)       Rendering plant;
(vi)      Landfill site;
(vii)     Regional waste transfer station;
(viii)     Wastewater treatment plant;
(ix)      Food processing plant;
(x)       Intensive animal husbandry; and
(xi)      Any other similar or like uses or activity.
“Industrial Activity” means any of the following activities:
(i)The making of any article or part of any article;
(ii)The altering, repairing, servicing, ornamenting, finishing, cleaning, washing, freezing, packing or canning, or adapting for sale, of any article;
(iii)The recycling of any material or article involving receiving and processing of such material or article including any stripping, sorting, packing, breaking up or demolition, storage and the ancillary sale or distribution;
(iv)The on-site treatment or disposal of waste material other than sewage;
(v)The storage, whether for sale or not, of any solid, liquid or gaseous fuel or other dangerous goods referred to in the Australian Code for the Transport of Dangerous Goods; or
(vi)Any process of scientific or technological research.

Any of the following ancillary activities when conducted on the same premises as any of the above activities:
(i)The storage of goods or materials used in connection with or resulting from any of the above activities;
(ii)The sale of goods, resulting from such industrial activities provided that the area so used does not exceed 10% of the gross floor area of the building or 200m2 in area whichever is the greatest; or
(iii)Any work of administration or accounting in connection with such activities.
“Low Impact Activities” in relation to open space and conservation areas means those activities that do not change or impact adversely, the natural features of the area by means of construction of permanent or semi-permanent structures or by frequency and scale of activities.
“Shopping Facilities” includes a catering shop, hardware store, retail showroom, shop, shopping centre and the retail component of a plant nursery, as defined elsewhere in this section. The term may be qualified to describe a function for shopping facilities in the Local Plans.
12.2Use Definitions
“Hardware Store” means any premises used for:
(i)Display and sale, by retail, of building supplies, domestic hardware, fence posts and palings, plumbing supplies, sand or gravel in small quantities, sawn timber, solid fuel, stock feed or veterinary supplies; and
(ii)Ancillary storage of articles for sale or hire.

“Shop” means any premises used for the display, sale or hire of goods or the provision of personal services to the public. The term includes ancillary activities such as:
(i)Storage of goods to be sold on the premises;
(ii)Conduct of administration on the premises; and
(iii)Preparation of food.

“Shopping Centre” means any premises, comprising one or more buildings established in a coordinated manner, used predominantly for a shop or shops, with a total gross floor area of at least 2,500m2 together with any one or more of the following:
(i)Catering Shop;
(ii)Commercial Premises;
(iii)Indoor Entertainment;
(iv)Health Care Centre;
(v)Service Industry having a gross floor area of not more than 100 m2; and
(vi)Retail Showroom.

CITATION:	Woodman McDonald Hardware P/L v Mackay Regional Council [2013] QPEC 21
PARTIES:	WOODMAN MCDONALD HARDWARE PTY LTD ACN 009 744 390 (Appellant) AND MACKAY REGIONAL COUNCIL (Respondent) AND BUNNINGS GROUP LIMITED ACN 008 672 179 (Co-Respondent) AND CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS (First Co-Respondent by election)
FILE NO/S:	D51/2011
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	20, 21, 22, 23 February, 28, 29, 30 March, 3, 4 May 2012 written submissions to 13 June 2012
JUDGE:	Andrews SC DCJ
ORDER:	The appeal is adjourned to a date to be fixed to enable the parties to make submissions as to appropriate conditions of approval
CATCHWORDS:	Submitter appeal against decision to approve a development application for a material change of use for a large format Bunnings hardware – whether conflict with centres hierarchy – whether conflict for use of Industry (High Impact) Zone land for non industrial use – whether sufficient grounds – whether economic need – whether planning need – whether adverse impacts – whether absence of amenity and traffic impacts are “grounds” – whether to have regard to the published draft planning scheme – whether approval sabotages forward planning or will have a significant adverse impact on planned facility Weightman v Gold Coast City Council [2003] 2 Qd R 441, [2002] QCA 234 Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 Woolworths Ltd v Maryborough City Council(No 2) [2006] Qd R 286 Yu Feng Pty Ltd v Maroochy SC [2000] 1 QdR 306 Grosser v Gold Coast City Council (2001) 117 LGERA 153 Palyaris v Gold Coast City Council [2004] QPELR 162 Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337 Stappen Pty Ltd v Brisbane City Council [2005] QPELR 466 PMM Group Pty Ltd v Noosa Shire Council [2006] QPELR 144 Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APA 165 Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd.R 266 Glenella Estates v Mackay RC (2010) 180 LGERA 226
COUNSEL:	Gibson QC and Ure of Counsel for the appellant Hughes SC, Skoien of Counsel and Page of Counsel for Mackay Regional Council Gore QC and Job of Counsel for the co-respondent
SOLICITORS:	Heiner and Doyle for the appellant McCullough Robertson Solicitors for the respondent Norton Rose for the co-respondent

Specific Outcomes	Acceptable / Probable Solutions
Assessable Development
P1 Commercial development is located in the commercial zone and does not detract from the network of centres referred to in the Desired Environmental Outcomes.	S1 No solution specified.