Woolworths Limited v Maryborough City Council
[2004] QPEC 86
•17 December 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Woolworths Limited v Maryborough City Council & Anor [2004] QPEC 086
PARTIES:
WOOLWORTHS LIMITED ACN 000 014 675 (Appellant)
AND
MARYBOROUGH CITY COUNCIL (First Respondent)
AND
ROKAY PTY LTD ACN 098 337 690 (Second Respondent)
FILE NO/S:
1480 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Submitter Appeal
ORIGINATING COURT:
Planning & Environment Court of Queensland, Maryborough
DELIVERED ON:
17 December 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
15 – 18 November 2004
JUDGE:
Judge J.M. Robertson
ORDER:
[1] Appeal allowed.
[2] Negotiated Decision Notice 25 March 2004 is set aside.
CATCHWORDS:
Whether proposed change to impact assessable application “minor”; 3.5.14(2)(a) and (b) of the Integrated Planning Act 1997; whether proposal conflicts with DEO; whether proposal should be seen as part of integrated use of whole of premises; characterisation of present and proposed use; whether proposal conflicts with planning scheme; whether sufficient planning grounds to approve notwithstanding conflict.
Cases cited:
Carillion Development Ltd v Maroochy Shire Council [2000] QPELR 216
Ausbuild Pty Ltd v Redland Shire Council, Andiwork Pty Ltd v Redland Shire Council [2001] QPELR 409
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSW CA 270
Koerner & Ors v Maroochy Shire Council & Baines [2004] QDELR 211
Shire of Perth v O’Keith (1965) 110 CLR 529
Westfield Management Ltd v Pine Rivers Shire Council & Anor (unreported, Planning and Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003)
Woolworths Limited v Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd; Woolworths Limited v Caboolture Shire Council and Makro Warehouse Pty Ltd 2004 QPEC 015
Woolworths Limited v Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd; Woolworths Limited v Caboolture Shire Council and Makro Warehouse Pty Ltd 2004 QPEC 026
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGERA 157
Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 245
Cut Price Stores Retailers & Ors v Caboolture Shire Council [1984] QPLR 126
Roosterland Pty Ltd and its agents v Brisbane City Council [1986] QPLR 515
Luke v Maroochy Shire Council [2003] QPELR 5Statutes cited:
Integrated Planning Act 1997
COUNSEL:
G.Gibson QC with J Houston (for the appellant)
R. Litster (for the first respondent)
C. Hughes SC with M Williamson (for the second respondent)
SOLICITORS:
Mallesons Stephen Jacques (for the appellant)
Corser, Sheldon & Gordon (for the first respondent)
P&E Law (for the second respondent)
Contents
| Page | |
| Introduction ..................................................................................................................... | 4 |
| The Preliminary Point....................................................................................................... | 6 |
| The Appeal........................................................................................................................ | 8 |
| The Planning Scheme Extracts......................................................................................... | 9 |
| The 1990 Scheme.............................................................................................................. | 9 |
| The City Plan ................................................................................................................... | 11 |
| The Characterisation Issue................................................................................................ | 13 |
| Is TWG engaged in bulky goods retailing? ..................................................................... | 17 |
| Can the use be characterised by reference to the City Plan?............................................ | 19 |
| The Disputed Issues – discussion...................................................................................... | 22 |
INTRODUCTION
In late 1999 the then owner of Lot 7 SP 107050, a vacant block of land comprising approximately 1.3 hectares in Ferry Street, Maryborough applied to the Maryborough City Council (Council) for a material change of use of the premises for the purposes of showrooms. It was then anticipated that the anchor tenant in the proposed showrooms would be Harvey Norman. Under the now superseded Planning Scheme for the City, the application was impact assessable. The land was zoned Special Development Area (Precinct 2 – DCP 3), and located in the Railway Redevelopment Area within Precinct 2 which was described as “special opportunities”. The development scenarios included a “bulky goods retailing showroom”, and the Council in ultimately approving the application proceeded on the basis that the proposed use was for that purpose. The decision notice containing the approval was given on 24 May 2000.
A&M Investments Pty Ltd is the owner of Station Square Shopping Centre a large complex erected on Precinct 7 immediately to the east of the subject land. The centre contains a large number of tenancies including an anchor tenant Big W which is a discount department store operated by Woolworths Limited. In 2002 the solicitors acting for A&M Investments advised the Council that The Warehouse Group (TWG) was intending to become a tenant of the largest showroom to be erected on the site which was then owned by Rokay Pty Ltd.
The solicitors submitted that as TWG’s operation included the sale of food and groceries, it would not comply with the definition of “showroom” in the superseded Planning Scheme, and would thus not be a permitted use as part of the development permit to use the site as a showroom.
Council sought advice from town planner Mr David Perkins and his advice dated 17 October 2002 is in evidence.
Ultimately Council advised the owner that “the establishment of “The Warehouse” on the subject land will depend upon whether food/groceries are offered for sale”. In that event, Council’s advice was that an impact assessable material change of use application would have to be made to include a “shop” component in the approved use. By this time, the City Plan had been gazetted.
In May 2003, the Ryan Group (of which Rokay Pty Ltd is part) made the application.
On 16 June 2003 Council wrote to the Ryan Group in quite specific terms:
“Council has received advice that the ‘Warehouse’ shall occupy the newly constructed building and that the retail outlet shall open in May/June of this year.
Your attention is drawn to Council’s correspondence of 16 December 2002 detailing the use rights of the land and points of difference with the proposed use.
Council notes that a development application to rectify this situation has been lodged, however; completion of the application process must be achieved prior to the commencement of use of a part of the approved showroom use for the purpose of ‘Shop’.”[1]
[1] Exhibit 12, document 10.
The IDAS process commenced with the lodging of the material change of use application in May 2003.
On 12 June 2003 TWG commenced trading which included in part the sale of food and groceries.
At that stage the IDAS process was not complete, and Council had certainly not approved the application.
Consequently, on 18 June 2003 Rokay Pty Ltd was issued with a show cause notice pursuant to s. 4.3.9 of the Integrated Planning Act 1997. The notice alleged that the commencement of TWG operation amounted to carrying an assessable development without a permit; and use which did not comply with the conditions of the development permit. Council took a benign attitude, and on 3 September advised Rokay Pty Ltd:
“I wish to advise that the Council resolved that your response to the Show Cause Notice did not provide satisfactory town planning grounds for non-compliance as required. However, given the status of the development, no further action will be taken at this time.
However, failure to comply with conditions of approval and/or use rights issues associated with future stages of the development shall be dealt with swiftly and efficiently to ensure that a repeat of the present situation does not occur.”[2]
[2] Exhibit 12, document 19.
In early September 2003, Woolworths Limited and A&M Investments made written submissions setting out a variety of reasons (including conflict with the City Plan) for Council to refuse the material change of use application.
As the hearing of the appeal proceeded, it became clear that for a whole variety of reasons the files of Council in relation to this site had become mixed. Nothing turns on this. What is arguably clear is that Rokay Pty Ltd had also applied to Council to vary the conditions of the original development permit by reducing the number of tenancies from 6 to 4, and to increase the number of parking spaces. In a somewhat confused way, the impact assessable material change of use application to use part of the premises as a shop seems to have been considered by Council officers along with the application to change the development permit.
In due course, Council approved both applications, which included the use of the then operating TWG business of 60 square metres of space for the sale of food and groceries.
Rokay Pty Ltd then negotiated about traffic and other issues (not the shop issue) under the Integrated Planning Act 1997 which lead to a suspension of appeal rights, and on 25 March 2004 Council issued a negotiated decision notice which lead to the appeal now before the Court by Woolworths Limited, one of the two adverse submitters to the original material change of use application.
It will be necessary for me to return to some of these documents later as it is submitted by Woolworths, that the various applications and decision notices show, at the very least, confusion about the change of use being sought. In relation to Rokay, Woolworths’ submits that it has cynically adopted a development strategy designed to go behind the clear wording of the applicable Planning Scheme.
The Preliminary Point
At the commencement of the hearing, Mr Hughes Senior Counsel for Rokay Pty Ltd as second respondent to the appeal sought to amend its application to increase the area to be used for the sale of food and groceries from 60 square metres in the approval to 150 square metres. Council did not oppose the amendment, but it was strenuously opposed by Woolworths. After hearing some argument, I deferred consideration of the merits of the application to amend to the conclusion of the appeal.
Mr Hughes’ application to amend brings into play s. 4.1.52 of the Integrated Planning Act 1997:
“s. 4.1.52(1) An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or a submitter for a development application, the court:
(a)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; and
(b)must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.”
Schedule 10 of the Integrated Planning Act 1997 defines “minor change” as:
“minor change” for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change:
(a) require referral to additional concurrence agencies; or
(b)cause development previously requiring only code assessment to require impact assessment; or
(c)for a development requiring impact assessment—be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.
On the face of the application, it might be argued that an increase in floor area of approximately 150% could not be “minor”; indeed Woolworths so submits as part of its opposition to the application to amend. However, the application is to be assessed by reference to the wording of s. 4.1.52(2)(b) and the applicable case law interpreting the meaning of that provision.
The reference to 60 square metres dates back to the original material change of use application in May 2003. In the supporting material accompanying the application the extent of the proposed “shop” is shown on a layout plan and is said to be “less than 2% of the Warehouse’s floor area, or 56.4 square metres”. When one views that plan, the area marked for the proposed “shop” excludes confectionary which does come within the definition of “food and groceries”. Woolworths submits that the reference to a relatively small area was quite deliberate and is part of what it described as a cynical development strategy undertaken by Rokay. What is clear on the evidence is that TWG has, from the commencement of its operation, used at least 150 square metres, and probably more, to trade in food and groceries.
Judge Quirk considered this issue in Carillion Development Ltd v Maroochy Shire Council [2000] QPELR 216 and Ausbuild Pty Ltd v Redland Shire Council, Andiwork Pty Ltd v Redland Shire Council [2001] QPELR 409. In Carillion, an application was made to delete a cinema complex and some on-site car parking from a mixed use development application. At 218-219 of his judgment his Honour said that the determinative question was:
“Can the Court be satisfied that the removal of the cinema component from the development would not be likely to attract an adverse submission that was not provoked by the proposal in its original form.”
In answering that question his Honour said:
“The provision of this answer requires an examination of the matter not from the perspective of an experienced town planner or a person of any particular level of prudence or awareness in these matters but from that of the members of the community to whom the right of objection extends. Importantly it is whether any further (and adverse) submissions at all might have been provoked by the removal of the cinema complex. Whether such submission would involve objection sustainable in town planning terms is beside the point”.[3]
[3] Appellant’s Submissions, paragraph 37.
In Ausbuild, his Honour said (at p410), by reference to the determinative question to be asked in relation to each case:
“The question is not to be answered from the perspective of an expert town planner, but from that of a hypothetical potential objection taking a rational view of the matter.”
Despite the fact that TWG had traded in food and groceries from an area of at least 150 square metres from inception in June 2003, it was not until 30 September 2004 that solicitors on behalf of Rokay advised the appellant that they intended to make application to change the development application to incorporate 150 square metres (rather than 60 square metres) as the “shop” component for the purposes of retailing food and groceries.
The original application was publicly notified in accordance with the Integrated Planning Act 1997, and attracted only 2 adverse submitters; the present appellant Woolworths Limited and A&M Investments Pty Ltd. It is regrettable that the application did not specify in detail the actual area to be used including detailed drawings depicting the area in the premises to be set aside for the purpose. The extent of the change, when measured against a total floor area of 2820 square metres is not extensive and, as Mr Hughes SC for Rokay points out, the characterisation and town planning issues do not change as a result of the increase. There are no external impacts or amenity impacts that arise because of the change. The Council does not object to the application to amend. It is true, as the appellant submits, that there is considerable confusion in the various documents relating to the application and negotiated decision notice but, in my opinion, this does not alter the conclusion I draw that the change sought is “minor”, and the application to amend is approved. Because of the conclusions I have reached on the merits of the appeal, it is unnecessary to take this any further.
The Appeal
Section 3.5.14 of the Integrated Planning Act 1997 is relevantly in these terms:
“(1)This section applies to any part of the application requiring impact assessment.
(2)If the application is for development in a planning scheme area, the assessment manager’s decision must not:
(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision.
(3)…
(4)Subsections (2)(a) and (3) do not apply if compromising the achievement of the desired environmental outcomes is necessary to further the outcomes of any of the following if they are not identified in the planning scheme as being appropriately reflected in the planning scheme:
(a) State planning policies, or parts of State planning policies;
(b)for the planning scheme of a local government in the SEQ region—the SEQ regional plan.”
Woolworths does submit that the proposed use of 150 square metres of “shop” in TWG premises compromises the achievement of Desired Environmental Outcome 1 in the Planning Scheme. If that argument is accepted the appeal must succeed.
If that argument fails, Woolworths submits that there is significant conflict with the Planning Scheme, and that Rokay has not established sufficient planning grounds to justify the approval.
In accordance with s. 4.1.50 of the Integrated Planning Act 1997, Rokay has the onus of establishing that the appeal should be dismissed.
The Issues
The issues are:
(a) Does the proposal “compromise the achievement” of DEO1. If the answer is yes, the appeal must succeed.
(b) If no, does the proposal conflict with the Planning Scheme? If, as Rokay and Council submit, there is no conflict the appeal must fail.
(c) If there is conflict, are there sufficient planning grounds to justify the approval of the proposal.
In a consideration of all these issues, it is necessary for the Court to understand fully the nature of the use proposed, to enable this to be measured against the relevant provisions of the Planning Scheme. For this purpose it is necessary to examine in some detail the characterisation of the use which will involve descent into definitions, some of which have been construed by this Court in earlier decisions.
Before embarking on this exercise it is important to stress, as all Counsel did in their oral submissions, that the use being considered is the use approved by Council in its negotiated decision notice dated 25 March 2003[4]. Although the appellant contends that the overall operation of TWG on the site is that of a discount department store and not a “showroom”; it accepts (as it must) that the land carries with it the approval given on 24 May 2000 under the suspended Planning Scheme for use as a showroom. Mr Gibson put it very clearly when he observed early in his oral submission “this appeal is not about whether The Warehouse should continue its trading on sub-precinct 2.”
[4] Exhibit 12, document 30.
However, to properly comprehend the issues on appeal it is necessary for me to examine the whole of the operation, so as to properly characterise the use approved in the negotiated decision notice so that, in turn, Woolworth’s arguments about the DEO and conflicts with the Planning Scheme can be examined.
The Planning Scheme extracts
The City Plan was adopted in March 2000 so the application stands to be assessed by reference to that Planning Scheme. However the March 2000 approval for use as a showroom was assessed under the 1990 scheme. In some relevant respects the City Plan has adopted some of the wording of the superseded scheme, but in other important respects it has not. It is therefore necessary to examine the relevant parts of the old scheme, so as to properly examine the characterisation issues that arise under the present scheme.
The 1990 Scheme
The site fell within the Special Development Zone, and under the applicable Table of Zones permitted “as of right” uses as “any purposes so specified in a DCP”. The Table prohibited uses relevantly:
“(a) Any purposes so specified in a DCP.
(b) Any purpose other than referred to in Column 3 or Column 4.”
The relevant DCP is DCP 3 for the “Railway Development Area”. The site was contained in Precinct 2. Clause 4.3.2 sets out the intent of the precinct:
“…to provide for one or more of the following development scenarios subject to the proposal’s ability to meet the implementation criteria set out in 4.3.3:
· a residential or aged care home development located near the Central Business District of Maryborough and close to a variety of facilities;
· medium density housing;
· bulky goods retailing;
· take away food premises/restaurant; and
· carparking service development in adjacent precincts.” [5]
[5] 1990 Planning Scheme, DCP3, page 10.
Relevantly, the Table of Development which forms part of the DCP specified in Column 3 “showroom” as a use, with council consent.
The scheme provided (relevantly) a number of definitions:
““Major Shopping Complex” – Any premises used or intended for use primarily for the purposes of retailing goods, whether or not it is also used for other business undertakings, where the premises are built so as to function as an integrated unit, the complex contains one tenancy having the nature of a department store or discount department store, and the gross floor area suitable to be used for retailing exceeds 4,000 square metres. The term includes premises on the same allotment used for the fitting of motor vehicle accessories and parts of the rendering of minor services or minor running repairs to motor vehicles”
““Shop” – Any premises used or intended for use for the purpose of displaying or offering of goods for sale by retail. The term includes the incidental storage of goods on the same premises and the administration and accounting activities carried out in connection with the use. The term also includes, where ancillary to a major shopping development, the fitting of motor vehicle accessories and parts and the rendering of minor services or minor running repairs to motor vehicles. The term does not include a “General store”, “Hotel”, “Industry”, “Service station”, “Showroom”, “Roadside stall” or a “Warehouse” as herein defined”
““Showroom” – Any premises used for the sale, or the displaying or offering for sale, by retail, where:
(a) the goods offered for sale do not include food or groceries other than fresh fruit and vegetables;
(b) any article displayed or stored on the premises are (sic) fully enclosed within a building;
(c) any building, or sole occupancy unit within a building, so used has a gross floor area greater than 300 square metres;
The term includes the use of the premises for ancillary store, or any other purpose ancillary to such use of the premises, but does not include a “Hotel”, no premises located on the same site as a “Major shopping complex” as herein defined;”
It can be seen immediately that, under the superseded scheme, a premises did not fit within the definition of “showroom” if the goods offered for sale included food or groceries.
The City Plan
“DEO1 The City Centre is the dominant location in the Maryborough Region for major shopping and commercial activity.”
“Primary Measures to Achieve DEO 1”
“3. A site on the Lennox/Alice/Ferry Street frontages of the Maryborough Rail yards land, has been approved for the purpose of a major shopping complex. No further major shopping complex development is appropriate in the City during the life of this Plan.”[6]
“3.3 Local Area 2 – City Centre
[6] Exhibit 2, page 2-4.
Vision
The City Centre will be a compact regional centre with administrative, retail, commercial, tourism and entertainment facilities accessible to the local community. The former Railway yards redevelopment will form an integral extension of the City Centre, with heritage elements of the City Centre reflected in the new shopping development.”[7]
[7] Exhibit 2, page 3-9.
The Plan divides the City Centre into 5 precincts of which the Railway Redevelopment Area is one:
“3.3.2City Centre Local Area – Railyards Redevelopment Area Precinct
The Railyards Redevelopment Area is divided into eight (8) distinct sub-precincts (refer Map 3.2) in order to enable the expression of a detailed planning intent. Primarily, the precincts are intended for the purpose of controlling land use, to ensure the development of the entire Area is undertaken in an appropriately integrated manner. Each precinct has been defined based on existing land uses, potential land uses and physical features e.g. railway line.”
The site is contained in Sub-Precinct 2 – Special Opportunities Precinct.
“The sub-precinct is located with frontage to Ferry Street, to the south of the remaining railway lines and extends eastwards to the boundary of Sub-Precinct 7.”
“This sub-precinct is intended to provide for one or more of the following land use scenarios:
· a residential or aged care home development located near the Central Business District of Maryborough and close to a variety of facilities;
· medium density housing;
· bulky goods retailing;
· take away food premises/restaurant; and
· carparking to service development in adjacent sub-precincts.”
The intent will be implemented through
“(ix) any proposal for development within Sub-precinct 7 is to demonstrate that an area of land adequate to ultimately accommodate a Discount Department Store (DDS) based shopping centre will remain available as a result of the proposal’s approval. Council will require any proposal for a centre without a DDS to demonstrate how that centre could be feasibly expanded to accommodate a DDS in the future.
(x) Any development application will be required to ensure that adequate pedestrian linkages, both within the sub-precinct, into the adjoining sub-precincts and to the other parts of the Maryborough Central Business District are established and maintained to allow for ease of pedestrian movement.”
Table 3.4 sets out the development assessment table for all the sub-precincts within the Railyards Redevelopment Area and (relevantly) is in these terms:
Development Activity Special Opportunities Commercial Activities A C if Take Away Food otherwise I Commercial Activities B C if Restaurant otherwise I Shopping District I Shopping Local
All other material changes of use (unless otherwise specified in Schedule 8 of the Integrated Planning Act)
I
Rather than carrying over definitions from the superseded scheme, the City Plan in Table 5.1 “indicates the relationship between the definitions used in the City Plan and the definitions contained in the 1990 City of Maryborough Planning Scheme.” It seems obvious, that the scheme seeks to avoid the specificity of definitions in the earlier scheme and opts for more general definitions.
Relevantly the use definitions are:
“Commercial Activities B
Means any premises used for the sale of meals or refreshments and goods which do not heavily rely on passing trade”
which relates to a number of definitions in the 1990 scheme including “showroom”.
“Shopping District
Means the retailing of goods on premises where it is part of an integrated unit and services the City’s population”
which relates to the 1990 scheme definition of “Major Shopping Complex”. I agree with Counsel that to make sense of the definition one should notionally regard the word “District” as being in brackets; and
“Shopping Local
Means the retailing of goods on premises which primarily only services a local area”
which relates to the 1990 scheme definition of “shop”.
The Characterisation Issue
The appropriate principles applicable were advanced by Mr Hughes SC in his submission when he was acting on behalf of TWG (Australia) Pty Ltd in Westfield Management Ltd v Pine Rivers Shire Council and The Warehouse Group (Australia) Pty Ltd 2003 QPEC 010 and are set out at paragraph 45 of Judge Britton SC’s judgment, in that case:
““Characterisation” is not to be approached through a meticulous examination of the details of processes or activities or through a precise cataloguing of individual items or goods dealt in. (Shire of Perth v O’Keith (1965) 110 CLR 529; 534-5)
What is required is the determination of the appropriate genus which “best describes” the activities in question.
“If the activities, processes or transactions are capable of being treated as all or the majority of the species of genus, then that genus may properly be regarded as describing the purpose of the use of the land.” (Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305, 311)
A distinction exists between the nature of the use of the land and the purpose for which it is being used. The purpose will be characterised by a number of activities including a cluster of incidental and subordinate activities that will vary from time to time. The approach to be taken is one of construing the use broadly and liberally and confining the user to a precise activity is not required. (North Sydney Municipal Council v Boyts Radio and Electrical (1989) 67 LGRA 344, 353)
The court must characterise the use in a practical and common sense way. (King v Lewis (supra))
The inquiry to be made is whether the use complained of really and substantially is a use for the designated purpose. (Shire of Perth v O’Keefe (supra))
The appellant’s case is that in assessing Council’s decision to approve the material change of use application to incorporate a “shop” component into the existing showroom approval, it is essential to first characterise the use that is approved. In a nutshell, Rokay and Council submit that characterisation of the use is of minimal significance because whichever way the use is characterised it is impact assessable.
There is some confusion in the way in which the use has been characterised in the application and decision notices over the course of the assessment process.
Council’s original decision notice to issue a development permit on 24 May 2000 was “for the purpose of a showroom, as depicted on Plan no. 99-201…” and was for 6 tenancies on the site with a total gross floor area of 6135 square metres. The report from the Council’s planner prior to the decision notice, noted that the proposed use of the land for the purpose of Showroom (Bulky Goods Retailing) complies with the intent of the precinct. This planning report had assumed correctly from the planning report accompanying the original application for material change of use by Rokay’s predecessor in title, that what was contemplated was a use which fell squarely within the expressed intent of the Planning Scheme for precinct 2 in the Railway Redevelopment Area. As noted earlier, Harvey Norman was mentioned as a possible tenant. There was certainly no mention of the retail of food and groceries as this would have excluded the use from the definition in the scheme of “showroom”.
When solicitors for A&M Investments wrote to Council in August 2002 in relation to the possibility of TWG becoming a tenant on premises to be constructed on the land, Council sought advice from Mr David Perkins Town Planner who provided his advice by letter dated 17 October 2002. Mr Perkins made the obvious point that:
“… The Warehouse is consistent with the definition of “showroom” in the (1990 scheme) only if no food or groceries … are offered for sale. If those food/grocery items are offered for sale, the use is consistent with the definition of a “shop” in that (scheme)”.
On 16 December 2002, in accordance with this advice, Council advised Rokay:
“… the establishment of the “The Warehouse” on the subject land lawfully will depend on whether food/groceries are offered for sale.”
On 8 May 2003 Rokay lodged an application for material change of use. In its Form A (common details for all applications) it described the proposal as “Retail Warehouse”. The supporting letter from Rokay’s architects noted:
“The reason for this application for material change of use is purely in order that the Warehouse’s standard regular operations may comply with (Council’s) definition of “showroom” and “shop” under the City Plan.”
The confusion in this material is obvious in that the original approval was for a showroom, not a “retail warehouse” a concept that is not defined in either the City Plan or the superseded scheme. Further, “showroom” and “shop” are concepts derived from the superseded scheme, and are not contained in the City Plan against which the application stood to be assessed.
It does appear that Rokay never responded to Council’s letter of 16 December 2002. On 16 May 2003 Council wrote to Rokay and referred to this letter and advised:
“Council notes that a development application has been lodged, however, completion of the application process must be achieved prior to the commencement of use of part of the approved showroom for the purpose of “Shop”.
As noted earlier, TWG commenced operation on 12 June 2003, which included at least 150 square metres of area devoted to the sale of food and groceries, at a time when the new application process was at an early stage.
Council issued an acknowledgement notice on the same day as its letter of 15 May 2003 and seemed to perpetuate the errors in the material change of use application, in describing the application for material change of use as “Partial Change of Use – Incorporation of Retail Shop Component into Showroom”.
By the time Council issued an information request on 27 May 2003, its officers were, in part, using the language of City Plan in referring to the proposed use as:
“… Commercial Activities B and Shop (Alteration to Use – small area of showroom to shop)”
Soon after TWG commenced trading on 12 June, Council issued to Rokay a Show Cause Notice in respect of:
“(a) carrying out assessable development without a permit (on the basis that the operation was not in accordance with the 2000 approval);
(b) non-compliance with conditions in the 2000 conditions.”
The response on behalf of Rokay on 26 June 2003 addressed the non-compliance question which related to access to the land from Ferry Street, but did not mention the unlawful use issue. On 3 September 2003 Council advised Rokay that although its response to the Show Cause Notice did not provide satisfactory town planning grounds for non-compliance, nevertheless, because of the “status of the development” no further action would be taken at that time. The Council flexed its muscles in declaring in that letter that:
“… failure to comply with … use rights …shall be dealt with swiftly and efficiently to ensure that a repeat of the present situation does not occur.”
Council’s planning officer reported to Council on 28 November 2003.
This document did cause some confusion at the start of the hearing which ultimately was resolved by Mr Litster. The report appears on its face to relate to 2 applications, the material change of use application and the request to change an existing approval. Both were wrapped into one proposal described in 4.2 of the report as:
“The application sought to amend the use rights from that existing over the premises as follows:
· Reduction from six to four tenancies;
· Reduction in total floor area from 6135m² to 4719 m²;
· Increase in customer parking spaces from 101 spaces to 186 spaces; and
· The dedication of approx 60 m² for the purpose of retailing groceries and food products.
The groceries offered are as the applicant describes
“only a selected and restricted lines of products, which have been purchased as ‘special consignments’. Equally the range of items and lines change as stocks consignments are sold-off or run out, so they do NOT offer for sale regular or constant stock items or lines.”
The application seeks to allow a 2% change to the retail sales area to allow the sale of groceries whilst the balance area of the existing building and site remaining as Showroom uses. The proposal incorporates changes to layout and car parking to facilitate the amendments.”
The confusion was compounded by the introductory paragraph which states:
“This application proposes to expand the use rights of an existing lot and building approved for Showroom purposes to allow the operations of ‘The Warehouse’ retail business on the subject land. The application was brought about by concerns regarding the legalities of the use and the site set up suitability and capacity to cater for the use.”
Mr Buckley who gave town planning evidence for the appellant was still not convinced that the 2 processes had been wrapped into one, however it is not necessary for me to resolve the issue, as the appeal relates only to the material change of use application.
The first issue relating to the characterisation of use requires an examination of the total use of the premises in order to properly understand the nature of the use approved by Council’s Negotiated Decision Notice.
The appellant relies to some extent on the evidence of Ian Wakeley, a market researcher and the evidence of Mr Anthony Dimasi a retail shopping centre analyst, and Rokay relies on the evidence of town planner Mr Schomburgk.
Mr Schomburgk sets out his views at 4.2.13 of his report[8]:
[8] Exhibit 5.
“4.2.13 The simple fact of the matter is that “Warehouse” does not fit comfortably with traditional town planning scheme definitions. It falls generally between a “shop” on the one hand and a “showroom” or “retail warehouse” on the other hand. While it sells goods by retail (and thus has the characteristics of a shop) the differences include:
a) almost all of the goods are stored in the same room where they are presented for sale;
b) the fit-out of that room is very basic;
c) the level of customer service is minimal;
d) there are no change rooms for clothing sales;
e) there are no obvious “departments” within the store – rather a series of aisles with different merchandise; and
f) many of the goods are either bulky or are sold in bulk (which functions more as a showroom or retail warehouse).”
At 5.5.6 he said:
“…I do not consider that the Warehouse outlet is in the ordinary understanding of the term, a major shopping complex, nor even a shopping centre. It is effectively a large floor space, free-standing retail outlet. The component within the store dedicated to food and some grocery items is best, under this Planning Scheme (or, more accurately, the former Planning Scheme) defined as a shop, given the exclusion in the “showroom” definition in these terms.”
In cross examination by Mr Gibson QC on behalf of Woolworths he was closely questioned on this issue. It is common ground that TWG does not involve use as a supermarket or a department store (such as Myer or David Jones). The appellant argues that it is in reality a smaller version of a discount department store (DDS) such as Big W, K-Mart or Target. Mr Schomburgk finally agreed that its operation was closer to that of a DDS as opposed to a discount variety store (DVS) such as Crazy Clarks.
Mr Dimasi’s opinion is that TWG operates as a DDS. At paragraph 7.2 of his report[9] he states:
“7.2 From a retail analyst’s perspective, the TWG store has one single main use, namely as a discount department store. The concept of a discount department store owes its success to the very fact that it is able to offer, under one roof and as one store, a series of self-service departments, with goods able to be selected as required from each department by individual customers. By adopting a self-service approach, and a large store format, a discount department store is able to offer relatively low prices, and The Warehouse, in particular, seeks to emphasise its low price offerings.”
[9] Exhibit 10.
In his oral evidence, he helpfully described the characteristics of TWG which lead him to conclude that it is in reality a DDS. He referred to the large number of departments clearly defined, the self service and check out set up, and the size and range of goods offered. In his evidence, Mr Schomburk first disputed that the departments were clearly marked however he conceded that he was wrong when he viewed Mr Wakeley’s photographs. It was clear from the inspection, that there are a large number of “departments” integrated under the one roof, but clearly marked with colourful signs. In his report to the Court, Mr Perkins dealt with this issue very swiftly under Part 5 “Consideration of Disputed Issues” at paragraph 99. Mr Perkins says “the term “discount department store” is not a defined term within either the City Plan or the 1990 Planning Scheme”. Of course that is true, however the term is specifically referred to in implementation criterion (ix) to the intent of sub-precinct 7 in the City Plan, although not defined. Mr Perkins was far more expansive in his earlier advice to Council dated 17 October 2002.[10] He said (at p2):
“The proposed Maryborough version of The Warehouse with a retail area of 2753 square metres could therefore be considered as a small discount department store.”
[10] Exhibit 12, document 7.
And (at p3):
“Whether or not The Warehouse is consistent with the definition of a “showroom”, in its function it is a discount department store.”
Mr Buckley’s opinion is that:
“From a practical point of view the use conveys the notion of a discount department or discount variety store”.
In my opinion, TWG operation is that of a small discount department store. Ultimately on this issue, I found the evidence of the expert retail analyst Mr Dimasi to be very persuasive and I accept it.
Is TWG engaged in “bulky goods retailing”
Because this use is included specifically in a wide range of specific uses intended in sub-precinct 2, Woolworths argues that this issue of characterisation is most important.
Mr Clark, the manager of the Maryborough Warehouse gave evidence for Rokay and his evidence is relevant to this issue.
Mr Wakeley addressed this issue specifically in his report. He was commissioned by the appellant’s solicitors to identify the variety of products being offered for sale at TWG, and the relationship between the rest of the store and the section used for grocery/food product retail. His evidence was largely unchallenged.
On this issue he extracted some dictionary definitions:[11]
“…“bulky”:
“of great and cumbersome bulk or size.”[12]
[11] Exhibit 11 at page 7.
[12] The Macquarie Concise Dictionary Online; search for “Bulky”
“1. Taking up much space, large. 2. Awkwardly large, unwieldy.”[13]
[13] Oxford Australian Dictionary, 2002, page 178.
He visited the shop premises on two occasions for several hours. His photographs of the range of goods, both bulky and non-bulky are a helpful representation of the way in which TWG trades and accords with the inspection undertaken at the commencement of the hearing. He concluded that the proportion of space displaying bulky items is approximately 18% of floor area, or 437 square metres of floor area based on his estimate.
Mr Dimasi analysed the sale figures for TWG from opening in June 2000 to October 2004 and concluded:[14]
“2.11 Allowing in my view, for a general application of the term bulky, I estimate that approximately 26% of store sales are for goods which can be identified as bulky goods. The majority of the bulky goods displayed and sold by the store are in indoor furniture, appliances, outdoor furniture, and gardening.”
[14] Exhibit 10, pages 12-13.
Mr Hughes SC had Mr Wakeley calculate the total floor area occupied by products within categories which have bulky goods and Ex 23 is the calculation calculated in that way. The total floor area is 1,661 square metres or 70.4% of total floor area The exercise involved taking the whole floor area in the store displaying non-bulky goods said to be associated with bulky items eg. furniture and cushions.
At the time this exercise was undertaken it did seem to me to be a strained and rather impractical way of assessing the degree to which TWG actually trades in bulky goods, and it is not surprising that such an approach was rejected by the NSW Court of Appeal in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSW CA 270, in dismissing an appeal against the judgment of Lloyd J in Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] 123 NSWLEC 31. Judge Wilson SC also rejected this approach in Woolworths Limited v Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd; Woolworths Limited v Caboolture Shire Council and Makro Warehouse Pty Ltd 2004 QPEC 026 and followed the NSW decisions.
I accept the evidence of Mr Wakeley and Mr Dimasi, so it follows that bulky goods trading takes up 18% of gross floor area and comprises 26% of sales. As in the case of TWG premises being considered by Lloyd J in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSW CA 270 , TWG in Maryborough, as well as selling bulky goods, also retails bulk quantities of small products such as confectionary items. I agree with his Honour that this later activity does not constitute bulky goods retailing and I reject Mr Schomburgk’s evidence in this regard. In the NSW case, Lloyd J found that 40% of the store was occupied by bulky goods, however his Honour found (as did the Court of Appeal) that even at that level the wide range of merchandise of a non-bulky type sold by TWG militated against the description of being a trader in bulky goods. What Lloyd J said (at 345) is equally apposite here:
“Although the (Warehouse) is displaying and selling bulk quantities of small products, that does not constitute the display or sale of bulky goods. The respondent’s business seems to me to be the retailing of a range of general merchandise which involves the display of items in a bulk manner, where the goods require the convenience of a warehouse building to be handled, stored and displayed. The storage and display of goods in a bulk manner, however, does not come within the definition of “bulky goods salesroom or showroom”. In another way, it seems clear to me that the vast majority of the goods are clearly not bulky goods, and those which are bulky goods comprise such a small proportion of the total merchandise on display for sale as to be merely incidental to the respondent’s business, being the selling of general merchandise. At its highest the respondent’s use of the premises might be described as a form of small discount department store.”
In Woolworths Limited v Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd; Woolworths Limited v Caboolture Shire Council and Makro Warehouse Pty Ltd 2004 QPEC 026 Wilson SC DCJ found that the actual proportion of floor space devoted to the sale of bulky goods was “closer to the 20% or thereabouts calculated by Woolworths’ witnesses”. In light of my findings of fact on this issue, it could not be said that in the retail operation conducted by TWG Maryborough, “bulky goods retailing” predominates, or constitutes a significant proportion (whether measured by total floor area or sales or otherwise) of the goods offered for sale. It was generally accepted that stores such as Harvey Norman (which was the anticipated anchor tenant at the time of the 2000 application) are predominantly bulky goods retailers, although these stores also sell non-bulky items usually associated with bulky goods e.g. cleaning products associated with white goods.
It follows that on the evidence I accept that the present overall operation of TWG does not constitute bulky goods retailing. Certainly, when the use the subject of the appeal is considered in isolation, it is clearly not bulky goods retailing.
Can the use be characterised by reference to the City Plan?
As noted, absent food and groceries, TWG fits the definition of “showroom” - in the superseded Planning Scheme, and, with food and groceries included, it fits within the definition of “shop” in that scheme, which term specifically excludes “showroom”.
As the material change of use application stands to be assessed against the City Plan, the town planners have attempted to characterise the use by reference to the definitions contained in that scheme.
It is accepted that in construing planning schemes the applicable principles, in summary are:
(a) the schemes are to be construed broadly, rather than pedantically or narrowly, and with a sensible, practical approach;
(b) as a whole;
(c) in a way which best achieves their apparent purpose and objects;
(d) in light of the Integrated Planning Act’s clear proscription in s.2.1.33 against prohibiting development or the use of premises; and
(e) although planning documents have the force of law, they are not drawn with the precision of an Act of Parliament; and
(f) a conflict may not have the effect of ruling out a proposal.
The authorities supporting these various propositions were usefully summarised and set out by Judge Britton SC in Westfield Management Ltd v Pine Rivers Shire Council & Anor (unreported, Planning and Environment Court, Britton SC DCJ, 14 November 2003, 1627/2003) and again by Judge Wilson SC in Woolworths Limited v Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd; Woolworths Limited v Caboolture Shire Council and Makro Warehouse Pty Ltd 2004 QPEC 026.
The appellant submits that the use falls within the definition of Shopping District in the definitions set out above. Council and Rokay contend that the use either falls within the Commercial B definition or may fall within the uses not defined in the Development Assessment Table 3.4 in the City Plan. As I have observed, Council and Rokay regard the characterisation issue as less significant because whatever the use, it is impact assessable, and the case mounted by them both focuses on impacts.
The parties have proceeded on the basis that the definition of “Commercial Activities B” in Table 5.1 in City Plan should be construed disjunctively. The wording is unclear, however it is not necessary for me to finally construe the words because of the attitude taken by the parties. The applicability of the definition will therefore depend on whether or not it can be said that TWG are premises “which do not heavily rely on the passing trade.” Mr Clarke described the premises as being ‘destinational’, because of its isolation in the Railway Redevelopment Area from the Station Square Development. He also referred to the erection by A&M Investments of a chain wire fence along the boundary between sub-precinct 2 and sub-precinct 7 thus preventing any flow of traffic or custom from one site to another.
Mr Schomburgk accepted in cross-examination that essentially goods that do not rely heavily on passing trade are comparative goods; that is goods that are more expensive by nature, such as white goods; which are purchased irregularly, and generally, after the customer has compared prices and products at more than one retail outlet. Mr Schomburgk accepted that in considering this concept of “passing trade”, a distinction to be drawn in making that assessment in town planning and retail analysis terms is to consider whether the goods sold are comparative goods or not.
A classic example of premises which do rely heavily on passing trade is a take away food outlet, although clearly from time to time customers will decide to go from home to such an outlet to purchase food. Another example raised by Mr Gibson, and accepted by Mr Schomburgk as being a clear example of a premises that does rely heavily on passing trade is the petrol service station concept. Obviously, it could not be said that the goods sold at either premises are comparative goods.
Mr Schomburgk would not accept that TWG does rely heavily on passing trade, although, as I understand his evidence, he was not suggesting that predominantly the goods sold are comparative goods. His position was that this distinction is but one relevant in making the assessment, and that the evidence from Mr Clarke, the information provided TWG website which described it as a destination retail outlet, its isolated position coupled with evidence of high customer patronage, convinced him that TWG did not rely heavily on passing trade.
Mr Dimasi gave evidence on this topic on behalf of Woolworths, and I found his evidence to be persuasive and convincing. In expressing his opinion on this issue, he relied on Mr Wakeley’s survey and analysis of TWG’s operation contained in his report. When one has regard to Table 2 on page 11 of his report which was unchallenged, it can be seen immediately that very few of the products sold by TWG could be described as comparative goods. The isolation point is a relevant issue but, of course, there is approval for 3 other tenancies on the site as showrooms, so, to some extent, the store’s present isolation is because the site in the early stages of development. Mr Walkley undertook a survey of 401 residents in the vicinity of the Maryborough store in the period 28 October to 2 November 2004. He concluded that although some of the products might attract a specific visit, predominantly it was the cheaper prices and extensive advertising that attracted customers to the store. Certainly, his survey indicated that people do not shop at TWG because of a need to purchase food or groceries. In the question relating to the preferred distinction for food and grocery shopping, TWG did not rate a mention.
Mr Dimasi dealt with this topic at page 159-160 of the transcript. He noted that in the retail industry, the concept of “passing trade” can mean two quite different things. He described the concept of passing trade in, for example, a major shopping complex where a customer may go there to buy one item from a particular store, and in the course of walking through the centre, makes decisions to buy other products because of price and other considerations. The other concept he described which appeals to commonsense, is the customer who goes, for example, to a discount department store to purchase one item, and walks past attractive aisles with bright colours and low prices, and purchases other items. This also comes within the understanding of the concept within the retail industry. It is predominantly in that sense that he describes TWG as relying heavily on passing trade. As I have noted his evidence is convincing, and appeals to a common sense and a practical approach to a rather ephemeral concept. I accept his evidence. It follows that the premises do not fit within the definition of “Commercial B” in the City Plan.
Before moving on to the appellant’s argument that “Shopping District” is the appropriate category, I should refer to the rather unusual way in which the drafters of the City Plan have dealt with what is described as “the relationship” between the definitions in that Plan and the definitions in the superseded plan. No-one has submitted that on a proper construction of Table 5.1, the 1990 Plan definitions are incorporated or transported in to the City Plan, nor would such a construction be compatible with the principles referred to earlier to be applied in construing planning schemes. A mere comparison of some of the old definitions with the new would lead to a non-sensical result if this was the case. Rather than perpetuate the specific definitions of the superseded scheme, the drafters of the City Plan appear to have opted for more flexible definitions. Flexibility however does not permit interpretation which does not conform to the principled approach to construction of the scheme mandated in the authorities. I agree with Mr Buckley that it is probable that this approach was taken to provide practical guidance to developers, town planners etc in relation to premises that have uses approved under the old scheme, and, for example, a change of use is being contemplated.
I agree with Mr Gibson QC that to regard the concepts from the 1990 scheme set out in the right hand column of the table as interpretative of the definitions set out in the left hand column, would be to subject those definitions to an unwarranted limitation. To take that approach (which to be fair was not suggested by either Mr Hughes SC or Mr Litster) would remove the utility of having new definitions, which the drafters of the Plan clearly intended.
There is common ground that in order to properly understand the use described as “Shopping District”, it should be read as if there were brackets around “District”. Mr Schomburgk said that it would be sensible even to regard the use as “(District) Shopping”. The disputed issue here on the evidence was whether or not TWG premises form “part of an integrated unit”. There is no dispute that it “services the City’s population”.
As it turned out the dispute evaporated in the course of the evidence. Mr Dimasi described the concept from the point of view of a retail analyst, as a unit functioning effectively as one common integrated unit for the purpose of selling goods to customers. Mr Buckley referred to the fact that the premises is part of an overall approved development of Lot 7 which will integrate the proposed 3 additional tenancies with the existing premises by common parking and external pedestrian access areas. The undisputed evidence from Mr Clark, Mr Wakeley and Mr Dimasi is that the area presently devoted to the sale of food and groceries is fully integrated into the balance of floor space, and inspection bore this out. Mr Schomburgk agreed that TWG range of goods is sold as part of an integrated unit.
On the evidence, I am satisfied that the use presently conducted by TWG on the premises, including the sale of food and groceries falls comfortably within the definition of use as “Shopping District” in the City Plan. I am conscious of the fact that in the table of use definitions this use is related to “Major Shopping Complex”. For reasons later expressed, when viewed as a whole, the conclusion I have reached best fits the overall intent of the City Plan in respect of the Railway Development Area, and in particular sub-precinct 2.
The Disputed Issues - Discussion
(a) Does the proposal “compromise the achievement” of DEO1
I think it can be fairly said that the Appellant’s submission focussed almost completely on the s. 3.5.14(2)(b) argument, however it has not abandoned its argument based on s. 3.5.14(2)(a). Compromise of a DEO is fatal to an application that requires impact assessment unless s. 3.5.14(4) applies which it does not in this case.
As his Honour Judge Wilson SC noted in Koerner & Ors v MSC & J.T. Baines & L.J. Baines [2004] QDELR 211 at 215:
“The DEO’s simply form part of all of the relevant elements of the Plan which the Court must consider, including those matters to which the scheme itself pays significant obeisance: community need, and demand; the desirability of, and possible benefits from, the proposal; the impact it would have; and, of course, the prevailing realities – whether development in the area has advanced, or will advance, in accordance with the Plan.”
As he pointed out at paragraph 25 of Koerner:
“There is … a distinction between compromising the achievement of DEOs, and conflicts with the Planning Scheme. For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised.”
As Mr Gibson conceded, it is a stringent test and in my opinion, the second respondent has satisfied me here that the proposal will not “compromise the achievement” of DEO 1 in the sense in which that phrase is construed by Judge Wilson in Koerner. In this regard, I refer to and adopt my findings set out below which form the basis of my ultimate conclusion on the s. 3.15.14(b) point.
(b) Is there conflict with the Planning Scheme?
A preliminary issue raised on the submissions relates to what planning unit should be considered in asking this question. The parties have all proceeded on the basis that the use the subject of the appeal should be considered as an integrated part of the overall TWG operation for the purposes of deciding if there is conflict or not. If I decide that there is conflict, the parties diverge somewhat as to the appropriate unit to be considering in deciding if there are sufficient planning grounds to allow the proposal, notwithstanding the conflict.
The attitude taken by the parties accords with the approach taken in other cases involving TWG, albeit in a different context. In Woolworths Limited v Caboolture Shire Council and The Warehouse Group (Australia) Pty Ltd; Woolworths Limited v Caboolture Shire Council and Makro Warehouse Pty Ltd 2004 QPEC 015 his Honour Judge Wilson SC referred to Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 (at p13) and said (in relation to the TWG operation in that case) that the sale of food:
“is not a separate entity but an essential part of each of the Respondents’ retail businesses. To put the matter another way, each is one operation – a retail premises – which should be characterised as a shop or a retail showroom.”
Having read his Honour’s description of the TWG operation in that case, it seems to operate in the same way as TWG Maryborough. Rokay did not suggest otherwise. Britton DCJ reached a similar conclusion in Westfield Management Limited v Pine Rivers Shire Council & Anor [2003] QPEC 010 in finding that:
“Having regard to all the evidence as to the offering for sale by a warehouse of food and grocery lines at the subject site and even on the view of the evidence most favourable to warehouse in terms of floor space occupied or turnover generated, the offering of food and grocery lines is not trivial not is it a use which is incidental to the use of the site as a showroom. There is no basis for concluding the offering for sale of food and grocery lines in necessarily associated with the use of the site as a showroom and therefore ancillary.”[15]
[15] Appellant’s Submissions, paragraph 37.
The evidence is clear that there is no physical separation of food and grocery items at TWG. Nor is any such physical separation proposed.
The first point of conflict, in the submission of the appellant is in relation to primary measure 3 to achieve DEO1, in conjunction with the clear intent expressed in the Plan in respect of sub-precinct 7, in particular implementation intent no. (x).
The appellant has never suggested that the proposed (and approved) development of “showrooms” on sub-precinct 2 is a “Major Shopping Centre”, which Mr Schomburgk seems to have assumed. As I understand his evidence, at its core, his opinion from his perspective as a planner is that the scale of the proposed use is such that it will not conflict with the intentions set out in the Planning Scheme. Mr Perkins essentially makes the same point. In his earlier opinion to Council, he seemed then to be more concerned about possible conflict with the scheme, having regard to the overall use proposed to be conducted then on the site by TWG. He says:
“It is concluded therefore that The Warehouse is consistent with the definition of ‘showroom’ in the 1990 City of Maryborough Planning Scheme only if no food or groceries (other than fresh fruit and vegetables) are offered for sale. If these food/grocery items are offered for sale, the use is consistent with the definition of a ‘shop’ in that Planning Scheme.
4. Establishing The Warehouse under the existing 1999 permit
Provided the Warehouse did not include the food/grocery items referred to in the above definition, it is possible that it could be deemed to be generally consistent with the existing development permit. This would require that Plan No. 99-201 be compared with the plans of the proposal for The Warehouse.
5. Other considerations
Whether or not The Warehouse is consistent with the definition of a ‘showroom’, in its function it is a discount department store. An important planning issue is whether this is a suitable site for a discount department store, given its location to the west of the existing shopping centre. The relatively poor integration of the site in relation to the city’s Commercial Core may be exacerbated in the future if The Warehouse seeks to expand. If Council considered it acceptable for a discount department store to establish on this site, it may well be desirable for The Warehouse to seek a new approval that provides longer-term flexibility for the likely range of products into the future. This approach would carry a risk of legal challenge by commercial rivals to an impact assessable development application.
It is also noted that the design of The Warehouse does not appear to provide for any integration with the adjoining shopping centre site (Sub-Precinct 7). Attention should be given to this design feature.”[16]
[16] Exhibit 7, document 7.
In his earlier opinion, he was much more in accord with the views expressed by Mr Buckley at the appeal hearing. Certainly as Mr Perkins pointed out to us on a number of occasions, he had a different “brief” at that time given that the use was prospective.
Given my conclusion that TWG does trade as a small discount department store and that the use under consideration involving sale of food and groceries should be viewed as part of an indivisible overall use for that purpose, there is clear conflict with the intent of sub-precinct 7 and that is that any DDS should be located in that precinct. That intent has been achieved with Big W located within the Station Square Shopping Complex. It is quite clearly intended that high order retailing such as a DDS be located in sub-precinct 7 and not sub-precinct 2. As to another DDS, the scheme is silent and one could possibly be located elsewhere in the City Centre but that is not an issue that I need to determine.
The second point of conflict contended for by the appellant is in relation to the express wording of the scheme in relation to sub-precinct 2 in which TWG is now trading. There is no doubt that the Council gave very careful consideration to the development intentions for this sub-precinct. It is immediately obvious that the intent criteria have been picked up from DCP3 in the superseded Planning Scheme. Mr Litster made an interesting submission in this regard regarding the Development Assessment Table 3.4 which contemplates a vast array of uses not specifically enumerated in the list of 5 disparate uses set out in the intent for the precinct. In my view, this does not change the clear stated intent for the precinct in the Plan.
Firstly, pursuant to s. 2.1.33 of the Integrated Planning Act 1997 a council cannot lawfully prohibit any use of premises in a planning scheme, and this is emphasised as Table 3.4 refers to all of the 8 sub-precincts in the Railways Redevelopment Area and is not specific to sub-precinct 2. Even more persuasively, the intent is clear that only one form of retailing is intended and that is “bulky goods retailing”, and I have concluded on the evidence that seen as part of an indivisible whole, the food and groceries use as part of the overall Warehouse operation is not in bulky goods retailing, it is as a DDS.
This conclusion is supported also by reference to town planning principles and that is that higher order retailing such as a DDS should be in the commercial centre or adjacent to it, consistently with the location of a DDS in sub-precinct 7 closer to the City Centre than sub-precinct 2. Town planning principles long established also hold that lower order retailing such as bulky goods retailing e.g. Harvey Norman should be on the periphery of commercial development, and away from the commercial centre where the large areas for such developments are not generally available, and where the higher rents provide a significant disincentive.
It follows that I am satisfied that the decision to approve the material change of use proposal to include the sale of food and groceries does, in the context of its integration within the whole of TWG operation conflict with the Planning Scheme.
(c) Are there sufficient planning grounds?
The final question is whether Rokay have satisfied me that there are sufficient planning grounds to justify the decision.
I agree with Mr Gibson QC that in one significant respect the approach of Rokay to this issue has been misguided. The appeal has never been about the future of TWG’s operation in Maryborough. To a significant extent I think Rokay has attempted to portray the impression that the continuation of the present use of some quite small part of TWG to sell food and groceries is essential to the continuation of the business as a whole. The decision of this Court, on the evidence before it, will have no effect on the existence of TWG business.
Mr Hughes asked many questions of witnessed called by the appellant along these lines. At page 230, line 20 he asked Mr Buckley:
“Do you think – as a planner, is it your view that The Warehouse should be shut down where it presently is? – Well I am not here to express that view, I am here to assist the court in determining whether the application that’s made is appropriate.”
Mr Gibson QC objected on the grounds of relevancy and the objection was upheld.
The main planning ground relied upon related to community need. There is no dispute that need is a relevant town planning ground in relation to the decision under appeal. Mr Hughes SC and Mr Williamson helpfully summarised the correct approach in their written submission and I adopt their summary:
“(a) “In ordinary parlance, one hears reference to phrases such as, ‘a person in need’, which conveys as a matter of objective fact the idea that that person, if not in distress, is nonetheless deprived to the extent that his wellbeing is at risk. One cannot sensibly translate that concept into the town planning context. Need in planning terms is a relative concept … (It) is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided.Rather, it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring that the provision of that facility, subject always to other considerations of the town planning kind, including all consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity. Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 245 at 249-250”
(b) “‘Need’ in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community. Cut Price Stores Retailers & Ors v Caboolture Shire Council [1984] QPLR 126 at 131”
(c) “‘Need’, in planning terms, is a relative concept. It does not connote pressing urgency, but rather relates to the general wellbeing of the community. A use is needed if it would, on balance, improve the services and facilities available in a locality. Roosterland Pty Ltd and its agents v Brisbane City Council [1986] QPLR 515 at 517”
In that submission, Rokay has to a significant effect concentrated on the town planning need for TWG in Maryborough. Paragraph 7 of their written submission states:
“In this case the evidence clearly establishes that there is a town planning need for The Warehouse in Maryborough.”
At paragraph 61 they state:
“The Court is invited to find that the following:
(a) there is a demonstrated town planning need for The Warehouse to serve the people of Maryborough. That need is evidenced by reason of the 5,000 (approx.) people who attend The Warehouse each week (see Exhibit 13);
(b) The Warehouse is appropriately located to serve the public and is not only convenient but forms part of, and supports, the major retail activity promoted in the Railyards Redevelopment Area.”
The appellant took no issue that on the evidence, there is clearly a “need” for TWG in the City. Mr Clark’s evidence establishes that on average 5000 people have visited the premises since it opened in June 2003.
The submission of the appellant is that the evidence does not establish any need for 150 square metres of floor space for the sale of food and groceries, which is the subject of the material change in use decision under appeal. Mr Walkley’s survey established that when residents were asked unprompted “where would you mostly shop for food and groceries”, TWG did not rate a mention by name. Similarly, other questions established that shopping for food and groceries is not what attracts people to shop at TWG.
It is obvious, in my view, that the “decision” referred to in s. 3.5.14(2)(b) is the decision to permit TWG to trade in food and groceries, and is not in any way referable to the original decision to approve the use on the premises as a showroom. It follows that where there is conflict with the Planning Scheme, the second respondent must point to sufficient planning grounds to justify that decision, if it is to succeed. In my view, the evidence simply does not establish any community need for a small portion of the premises to be devoted to the sale of food and groceries. In this sense, the comments of his Honour Judge Wilson SC in Luke v Maroochy Shire Council [2003] QPELR 5 to which Mr Hughes SC referred in his submission are distinguishable.
I agree with Mr Hughes that the decision of Council to approve the use is a relevant factor in this determination, but there is simply no evidence that the Council regarded need for the sale of food and groceries as opposed to need for the whole TWG DDS as an important and persuasive planning ground in support of approval.
The next planning ground raised on the evidence is the need for competition.
Rokay did not really press this as a separate ground; rather it was somewhat subsumed in the argument based on community need and public benefit. Insofar as competition is relied upon by Rokay, I think the issue is well covered by Mr Dimasi’s report supplemented by his oral evidence. Again, the use that the Court should focus on is the food and groceries retail component as part of the integrated TWG operation. Mr Dimasi’s report[17], produces a Map (Map 1) which sets out the location within the City Centre of other retail outlets which could be seen to be in competition with TWG. These include Big W in the Station Square Shopping Complex and Crazy Clark’s in the City Centre. In my opinion, the small scale of the food and groceries component of TWG is unlikely to impact competitively on these other outlets. On the other hand, the overall TWG operation does on the evidence provide healthy competition with these other entities for the benefit of the residents of the City.
[17] Exhibit 10.
The next planning ground raised on the evidence relates to the lack of amenity and external impacts in the proposal. At the time of the appearances before Judge Wilson SC on 1 July 2004 traffic was nominated as a disputed issue, however this was not maintained on the hearing of the appeal. The evidence does not point to any amenity or external impacts however this fact has to be seen in context. The present lawful use of the premises as a showroom presents with exactly the same lack of impacts, as the present unlawful use of a small area of the premises for the sale of food and groceries.
Further, I am attracted to the argument advanced by Mr Gibson QC that what is required by the process contemplated by s. 3.5.14(2)(b) is for Rokay to satisfy me that there are sufficient planning grounds to justify the decision; and the absence of particular impacts does not constitute a planning ground in the sense contemplated by the sub-section. It is not necessary for me to reach any conclusion on this submission, because, on the evidence the absence of these impacts are equally applicable to the lawful use of the premises as a showroom as to the unlawful use for the sale of food and groceries, and cannot therefore assist Roka’s argument.
Other planning grounds were raised in the evidence of Mr Schomburgk and Mr Perkins which were not specifically pressed by Rokay or Council in final submissions. For example, Mr Schomburgk gave evidence that the use would strengthen the City core; however he did not attempt to relate this to the decision under appeal, rather, I understood him to be making this observation in relation to the overall operation of TWG which is not in jeopardy in this appeal. Both he and Mr Perkins regarded the small scale of the proposed use as being of relevance to the s. 3.5.14(2)(b) issue. For example, at paragraph 98 of his report Mr Perkins put his opinion in this way:
“Planning grounds that would, in my opinion, justify a decision to approve include:
(a) the proposed change of use does not introduce a use which by its nature or scale is in conflict with the intention for development of the site;
(b) the insignificance in planning terms of any conflict that might potentially be established given;
(i) the absence of significant impact on the planning intent for the City Centre;
(ii) the proposed change of use is not inconsistent with, nor will it significantly affect, the approved retail use of the site;
(iii) the absence of identifiable adverse planning impacts; and
(c) the potential for increased (albeit marginal) attraction for an existing business which has the potential to reinforce the planning intent for the City Centre.”
It can be seen immediately that this opinion is tainted by circular reasoning. Earlier in my reasons, I have determined that for the purpose of determining whether there is conflict with the Planning Scheme, the food and groceries must be viewed as part of the overall operation of TWG as a DDS. The opinion of Mr Perkins and to a large extent that of Mr Schomburgk, is predicated on an acceptance of their opinion as planners that there is no (or only minor) conflict which I have rejected.
It follows that the appeal should be allowed.
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