Woolworths Limited v Townsville City Council
[2005] QPEC 120
•15 December 2005
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Woolworths Limited v Townsville City Council & Ors [2005] QPEC 120 PARTIES: WOOLWORTHS LIMITED
(ACN 000 014 675)
(Applicant)AND
TOWNSVILLE CITY COUNCIL
(First Respondent)AND
THE WAREHOUSE GROUP (AUSTRALIA) PTY LTD
(ACN 003 038 702)
(Second RespondentFILE NO/S: BD2715 of 2005 DIVISION: Planning and environment PROCEEDING: Application ORIGINATING COURT: Planning & Environment Court of Queensland DELIVERED ON: 15 December 2005 DELIVERED AT: Townsville HEARING DATES: 24, 25, 26, 27 & 28 October 2005
JUDGE: PACK D.C.J. ORDER: Appeal Dismissed CATCHWORDS: PLANNING LAW – PLANNING SCHEME 1994 and THE CITY PLAN 2005. APPEAL against Respondent Council’s decision to approve material change of use application. The Application for material change lodged just before The City Plan 2005 came into existence. Council approved material change of use.
Whether proposal conflicts within 1994 Scheme and/or City Plan 2005.
On Friday 21st October, three days before the appeal commenced, a new “showroom” definition gazetted under City Plan 2005.
Showroom – means Showroom Type A or Showroom Type B:
Whether weight to be given to be given to Showroom Type B definition.
APPEAL - whether decision colourable. – Contention over Respondent Council’s management of the issue.
- Whether conflict found – or sufficient Planning grounds to justify decision.Cases considered:
Westfield Management Ltd –v- Pine Rivers Shire Council & Anor (2005 QPEC 15 @ 20).
Cornerstone Properties –v- Caloundra City Council 2004 QPELR 54 at 62.
Westfield Management Ltd –v- Pine Rivers Shire Council & (2004 QPELR 337 @ 7).
Chippendale Estates Pty Ltd –v- Sydney City Council (1966) LGRA 194.
Lubrizoll Corporation Ltd –v- Leichardt Municipal Council (1966) LGRA 203.
Flinn –v- Bundaberg City Council (1972) 24 LGERA 408.
Sommerville –v- Logan City Council (1990) QPLR 264.Counsel:Mr D. GORE QC and Mr J. D. HOUSTON for the Applicant. Mr M.J. BURNETT for first Respondent.
Mr R.S. LITSTER and Mr JOB for the second Respondent.
Solicitors: Malleson Stephen Jacques for the Applicant
Townsville City Council for first Respondent
Deacons for the second Respondent
This is an appeal which arises from the Respondent Council’s decision to approve a material change of use application for part of existing premises located near the corner of Woolcock Street and Reardon Street, Currajong, Townsville. The access is from a service road which is close to and parallel to Woolcock Street. The subject site is generally to the south of Woolcock Street. Its total area is 1.612 ha. To the east of the subject site Woolcock Street leads to the city centre and South Townsville. To the west it leads to the northern suburbs and Bruce Highway. As one proceeds in a northerly direction past the subject site, Woolcock Street continues on but there is a major branch road which turns off to the left leading to further suburbs and after an estimated seven or so kilometres to the Willows Shoppingtown. About one kilometre away in that direction is the Castletown Shopping Centre which is on the right hand side of the road as one proceeds along Woolcock Street to the city centre. There is a further concentration of retailing activity adjacent to Castletown and there is retailing activity between Castletown and the subject site and beyond the subject site. After one leaves the target site there is a distance of about 100 metres or so to the left as one proceeds west on Woolcock Street without construction on the southern side because an artificial lake comes close to Woolcock Street at that point. Thereafter one finds a motel/hotel complex occupying several hectares before encountering a number of fast food outlets. A large McDonalds outlet is on the corner and after crossing this intersection the relevant building appears on the left. There is a service road and the commercial strip continues for at least another half dozen commercial premises separate building to the north of the subject building. All of these businesses in general terms appear to sell goods many of which would be bulky but of the same type of product. A gymnasium also appears in the midst of those shops to the north of the subject building. A number of businesses in this vicinity have large floor areas.
I should record that during the hearing of this matter parties did indicate that they would like me to inspect the subject site. There was insufficient time available to allow that to take place. However, each of the parties was aware that I had inspected the site at the time of the 2004 hearing and because of that circumstance requested me by agreement to include the earlier observations to the extent I might consider necessary in determining this appeal. As noted at the time of inspection and in evidence in this case the Co-Respondent store had a relatively low standard of internal fit out. It had a relatively high industrial style racking on a concrete floor. The store is of a self service variety with a check out at the entry/exit point. There is a wide variety of stock. Much of it does not bear familiar brand names. Some of the stock is described as “opportunistic stock” which refers to stock manufacturers have difficulty selling and/or has some defect in allowing it to be sold cheaply without the continuity of supply. About 30 per cent of the goods are of a bulky nature. The presentation of the goods for sale, the quality, facilities at the store are each said to be of a lower standard than one might encounter at a typical discount department store. Some evidence of comparative prices from The Warehouse and other potential competitors was given. Some prices were higher than at competitors and some lower. The so-called discount seems generally to have application in the sense that the less well known brands on some products sell more cheaply than products with better known brands. The presentation of the goods for sale no doubt encourages the perception at least that goods can be sold more cheaply because of the manner in which they are presented. Whilst presentation and marketing methods can change it is nonetheless necessary to examine the general nature of the business when considering whether conflict with the Planning Scheme has been established.
With respect to the same premises this Court made a determination on the 17th November, 2004, involving a declaration that the Co-Respondent’s business activity at that location was unlawful because it was incompatible with the “showroom” definition in within the Council’s planning scheme. The Co-Respondent’s business within the premises continued until the Court of Appeal gave its decision in relation to the same matter on 10 June 2005. The business has been closed since that date. Other tenants in the building, occupying lesser floor space are Sportscene, Toyworld, and the Salvos Shop. The nature of the Co-Respondent’s business methodology remains unchanged. At the core of the earlier judgment was the conclusion the Respondent Council had wrongly approved the use as a “Showroom” but I also expressed the view the proposal also did not fit the “shopping centre” definition, and the proposed use was best described as innominate. The Co-Respondents sought approval for the proposal described as a “Variety Retail Warehouse”, on 24 December last year. The fact there was previously an unlawful use is not I think a circumstance “for or against” the current proposal of any great significance, although it is one of the ingredients (see Westfield Management Ltd v Pine Rivers Shire Council & Anor 2005 QPEC15@20).
The Respondent Council in reference to the site identified features including adjoining retailers, proximity to other retail development along Woolcock Street, the commercial zoning, the fact that there were existing suitable structures, and adequate access and parking as being significant. (See Ex 1.A39A40.)
The practical effect of the Council’s decision is that the Warehouse group will be permitted to operate their business within the premises. The Appellant challenges the validity of the Council’s decision, and in particular says the use should not have been approved in an out of centre location.
The entire floor area of the subject building is 6771 m2 and the approved use involves the Co-Respondent occupying a floor area of 3169 m2 of that building. When the application was made for a material change of use a definition of Variety Retail Warehouse was provided as follows:-
“Variety Retail Warehouse – Premises used or intended to be used for the display or offering for sale, storage and sale by retail to members of the public of a wide variety of goods, including general merchandise, where:
(a) The total use area is not less than 3000 square metres;
(b) The goods are principally displayed and offered for sale and stored in the same area;
(c) There is a limited storage area that is used for the short term storage of goods immediately following unloading; and
(d) The use of the premises for the display or offering for sale of food for human consumption (including but not limited to confectionary and soft drink) does not exceed 300 square metres.
The term does not include the use of the premises for the display or offering for sale of fresh, refrigerated, or frozen foods for human consumption, including fruit, vegetables, meat, fish, break, milk, eggs.”
In June of 2005 Council issued a negotiated Decision Notice under the Integrated Planning Act of 1997 approving the material change of use with conditions. Those conditions included some imposed by the Department of Transport but also included conditions which, keeping in mind the floor area in fact exceeds 3000 square metres, appears to adopt the definition set out in Paragraph 6. The amended development permit includes:-
“The proposed use is to be conducted so as to comply with the following definition:
Premises used or intended to be used for the display or offering for sale, storage and sale by retail to members of the public of a wide variety of goods including general merchandise where:
(a) The goods are principally displayed and offered for sale and stored in the same area
(b) There is a limited storage area that is used for the short term storage of goods immediately following unloading; and
(c) The use of the premises for the display or offering for sale of food for human consumption (including but not limited to confectionary and soft drink) does not exceed 300 m2 . The term does not include the use of the premises for the display or offering for sale of fresh, refrigerated or frozen foods for human consumption, including fruit, vegetables, meat, fish, bread, milk, eggs.”
The application was lodged just before The City Plan 2005 came into existence on 1 January 2005. Both the 1994 Planning Scheme and City Plan 2005 identify retail hierarchy for Townsville. The Appeal must be determined by reference to the 1994 Scheme, a transitional Planning Scheme for the purposes of the Integrated Planning Act 1997. Weight may be given to the 2005 Scheme. The appeal must succeed unless I am satisfied there is neither conflict with the 1994 Scheme nor sufficient planning grounds to justify approving the application. Largely the court’s task will be to consider whether there is conflict and if so to consider the extent and whether there are sufficient planning grounds to approve the proposal.
It attracted impact assessment. The use was defined in the commercial zone, placing it in the prohibited column.
The 1994 Strategic Plan map designates the preferred dominant land uses and zoning maps to find the uses within the zones. Nothing described as a Supermarket, Discount Variety/Department Store/Warehouse appears in the scheme. Following advertisement the Appellant made a submission to Council opposing the application.
Section 2.16.4 of The Strategic Plan deals with “City Centre Shopping and Commercial”. Objective 1 states:-
“To establish a broad hierarchy of centres within the City Centre as the dominant commercial and retain centre, to provide a range of opportunities for shopping and to enhance access to shopping facilities.
Implementation
(a) The Council will promote a broad hierarchy of retailing centres with the City Centre as the dominant retailing centre supported by sub-regional and district shopping centres and local shopping facilities to maximum convenience.
(b) Any rezoning or consent applications for development for the purpose of retail and service establishments…will generally be limited to locations that consolidate existing shopping centres or areas as shown on the Strategic Plan map.
The subject site is not a shopping centre, and the Appellant submits conflict with (b).
Objective 2 states:
“To achieve a balance between the desire to satisfy the retailing demands with the community need for facilities and the desire to protect existing functional retail centres.”
Implementation
(a) …
(b) …
(c) …
(d) The Council will endeavour to consolidate, improve and where necessary, enlarge existing retail nodes rather than create new centres.”
The Appellant submits the proposal is in conflict with objective two because the type of facility should be located at an existing retail mode located on the Strategic Plan.
Objective 4 (Section 2.16.4 of the Strategic Plan) states:
“To encourage the development of complementary facilities such as recreational, professional, medical and other community facilities and some limited entertainment facilities adjacent to major suburban centres”.
Objective 5 (Section 2.16.4 of the Strategic Plan) states:
“To provide for commercial activities that may be better located outside the City Centre but not within suburban centres.”
The Appellant submits this objective is consistent with its case because showrooms are identified as one of the range of uses that may be better located outside the City Centre, on the basis that the Strategic Plan Map “identifies commercial areas adjacent to major roads that do not constitute suburban centres”. It is said that since the proposal is not a showroom it should be in such a centre.
The Co-Respondent also submits the proposal is consistent with Objective 5, on the basis it is submitted the proposal is one better located at its present position, particularly in an existing retail node. These sections of the Strategic Plan indicate the Respondent Council intended to encourage the consolidation and improvement of existing retail nodes rather than the creation of new centres, and Council did not intend to permit the development of additional shopping centres in competition to the City Centre, apart from at Mount Louisa, Douglas, Annandale and Oonoonba.
The subject land was rezoned from industrial to commercial designation in 1998. In s. 7.2 of the 1994 Scheme defines the intent of the commercial zone as follows:-
“the primary intent of this zone is to accommodate in that part of the zone compromising the City Centre, a complete range of commercial uses, appropriate to the role of the City as the major retail, service, tourist and administrative centre for the region.”
The subsection also includes,
“This zone also contains some local, other suburban and strip shopping areas. It is not intended that these non City Centre areas would contain the full range of uses permitted or permissible in the zone as some of those uses could adversely affect the activity in and the amenity of local or other suburban shopping and commercial areas.
Land in this zone should be conveniently located with good accessibility to main traffic routes and public transport.”
The earlier litigation between the parties focused on the “showroom” definition. It has been noted under the 1994 Planning Scheme “Showroom” had the following definition:
“Showroom – means a use requiring a large floor area where the gross floor area to be used for that purpose is not less than 400 square metres, for the display or offering for sale by retail of goods being one or more of the following uses, or other uses of a like nature requiring large floor spaces as determined by Council:-
(a) floor coverings and wall tiles;
(b) furniture;
(c) domestic appliances being washing machines, dishwashers, clothes dryers, refrigerators, hot-water systems, air conditioning systems and the like;
(d) domestic fittings and electric appliances;
(e) building and construction materials;
(f) sporting goods;
Where more than three (3) showrooms exist in one or more than one building and function as an integrated unit they become a shopping centre.”
“Shop” was defined under the 1994 Scheme as having an area of less than 600 square metres.
On Friday 21st October, three days before the appeal commenced, a new showroom definition was gazetted for City Plan 2005.
Under the 2005 Planning Scheme “showroom” has the following new definition.
“Showroom – means Showroom Type A or Showroom Type B where:
Showroom Type A – means premises used or intended for use as a retail outlet (whether within a building or not) where the retail floor area is a minimum of 600m2, where the type of retailing generates a purpose-specific vehicle orientated trip rather than a pedestrian orientated trip, and where the goods sold or offered for sale are, in the opinion of the Council, within or similar to one or more of the following categories:
(a) floor coverings, wall tiles, soft furnishings or bedding;
(b) furniture and décor;
(c) non-portable domestic appliances being washing machines, dishwashers, clothes dryers, refrigerators, hot-water systems, air conditioners and the like;
(d) building and construction materials, fixtures and fittings;
(e) bbq’s, camping goods or outdoor recreation goods;
(f) motor vehicles, caravans, boats, trailers including spare parts where the use is predominantly within a building;
(g) agricultural and other farm machinery and products including spare parts;
(h) swimming pools, spas and saunas.
The term includes any ancillary customer conveniences such as small catering shop, children’s play area, offices for administration, sales and staff amenities and the necessarily associated storage of goods prior to display for sale. The term does not include any other use defined in this Planning Scheme.
Showroom Type B – means any premises used or intended for use as a single retail outlet(predominantly within a building) where the retail floor area is a minimum of 600m2, where the premises are stand-alone or within a group of like premises but not in a shopping centre, and where the goods sold or offered for sale are, in the opinion of the Council, within or similar to one or more of the following categories:
(a) sporting goods, footwear, toys;
(b) electrical goods including audio and video goods, whether bulky or not;
(c) auto accessories;
(d) gym, and fitness accessories;
(e) hardware;
(f) office equipment;
(g) computer hardware, software and accessories
(h) other categories of goods, the sale of which, in the Council’s opinion, will have impacts similar to the categories set out above, or
where the type of premises is, in the opinion of the Council, within or similar to, or likely to have similar impacts to, one or more of the following categories of premises;
(i) discount variety store (being a shop of more than 600m2 selling a range of general and variety merchandise at substantially discounted prices);
(ii) “outlet” or factory seconds store;
(iii) retail warehouse 9as the term is commonly understood).
The term includes any associated sale or spare parts or accessories and the carrying out of service or repairs to goods offered for sale on the premises. The term excludes the sale of food (whether fresh, packaged or frozen) other than as a minor (less than 15%) component of the total retail floor area, and excludes a supermarket, discount department store or any other use defined in this Planning Scheme.”
The new Showroom Type “A” definition enlarges the minimum floor area significantly, and adds to the description and categories of goods. The Respondent submits in particular that the Showroom Type B definition should be given considerable weight in the determination of the Appeal. No doubt because of the reference to discount department store there has been a good deal of evidence focussing upon whether there is in reality, and if so to what extent, a difference between a discount variety store and a discount department store.
Under the City Plan 2005 the subject land is now in the “Business and Industry” Precinct. That designation generally was described as “Industry” in the 1994 Planning Scheme. The Appellant points to the fact that the word “
Industry” remains in the City Plan, and that precinct is surrounded by a ‘Core Industry’ precinct.
Clause 2.15 of the 1994 Scheme deals with Preferred Dominant Land Uses. The following appears by way of pre-amble.
“The Strategic Plan Map designates preferred dominant land uses. These designations are not zones and do not confer rights to use land or buildings. Uses which may establish within the preferred dominant land use areas are subject to the land in question being included in an appropriate zone on the zoning maps.”
This suggests to me that in the event of any apparent conflict between strategic plan designations and zones the zonal classification should be pre-eminent. That view is consistent with the conclusion reached by Robertson DCJ in Cornerstone Properties v Caloundra City Council 2004 QPELR 54 at 62, cited elsewhere with approval.
When the application was made to the Respondent Council the following matters were identified as being sufficient to justify approval of the application to Council should conflicts with the 1994 Planning Scheme and City Plan be established.
In a letter of 2 September 2005, to be found at A20 of Exhibit 1, the following matters were advanced as justifying approval if in fact conflicts were identified as follows:
“1. The land on which the approval will authorise the proposed use to establish:
(a) is conveniently located;
(b) enjoys high exposure;
(c) is highly accessible;
(d) is inappropriate for use for industrial purposes;
(e) was included in the Commercial zone following an application made to exclude it from the General Industry zone;
(f) is already developed with buildings suitable to accommodate the proposed use;
(g) is already developed for retailing and commercial activities that will be complemented and re-enforced by the proposed use;
(h) is adjacent to other land that is also:
(i) included in the Commercial zone;
(ii) developed for retailing and commercial activities that will be complemented and re-enforced by the proposed use;
2. The proposed use does not involve an increase in the amount of land designated for retailing and commercial activities in the 1994 Planning Scheme.
3. Retailing has not remained static since the commencement of the 1994 Planning Scheme and retail uses of the kind proposed were not specifically contemplated by the Council at the time that the 1994 Planning Scheme was prepared.
4. The proposed use is consistent with the scale and character of uses:
(a) existing on the land and adjacent land;
(b) contemplated for land included within the Commercial zone.
5. The proposed use will meet all relevant development standards applicable to the development in the Commercial Zone.
6. It is an appropriate planning outcome to co-locate the proposed use with retailing and commercial activities that require large floor areas. Such facilities are not readily accommodated in stand alone shopping centres or the city heart, due to the area of land required, including the need for convenient parking facilities.
7. Approval will authorise a popular and well-patronised retailer to lawfully trade from the land from which it has in the past, traded without unacceptable impacts.
8. Existing retailing and commercial activities on the land and on adjacent land, are likely to derive benefits from the attraction of consumers to the proposed use.
9. The proposed use will:
(a) provide choice and convenience to persons of limited means;
(b) meet a need that exists for retail facilities of that character.
10. The proposed use adds to the choice of shopping venues and will introduce competition in discount retailing to the benefit of consumers.
11. The proposed use will be a significant employment generator.
12. It is not alleged that the proposed use will create unacceptable economic impacts.
13. It is not alleged that the proposed use will create unacceptable carparking or traffic impacts.
14. It is not alleged that the proposed use will create unacceptable amenity impacts.”
The Appellant says that many of the matters raised in support of the application should be seen to be irrelevant. The Appellant seeks to have attention focussed on the nature of the proposed retail use contrasting those that with permitted uses such as the showroom under the 1994 Scheme.
The Appellant submits there is conflict with the 1994 Planning Scheme and the 2005 City Plan. I have dealt with some of the suggested conflicts in paragraphs 10, 11, 12, 14, 15, 16, 21, 22, 23, 24 and 25. It is necessary to consider all suggested conflicts as a whole.
The Appellant acknowledges that the 1994 Strategic Plan did contemplate commercial uses (including retail) on land with an industry designation but submits there ought to be limits because S. 2.15.7 of the Strategic Plan (4th paragraph) provided:
“The Council may approve the development of some commercial uses within the industrial areas, where those commercial uses demonstrate a nexus with the industrial uses”.
It is submitted this is complemented by S. 2.15.5 in which the following statement appears:
“‘It is intended that the existing centres will be expanded only if there is a need and demand for such expansion. This is as required by the Act but is restated in recognition of the westward shift in the geographic centre of the population”.
It was pointed out the subject land is not included in the list of additional centres mentioned in S. 2.15.5. The Respondents point to the limitation applying to “existing centres” only, and suggest the commercial zoning applying to what is a retail area does not preclude retail activity outside an existing centre. Such an interpretation the Appellant argues would dismantle the hierarchy.
There is authority supporting the maintenance of a retail hierarchy as an important planning principle. See for example Westfield Management Ltd v Pine Rivers S.C. (2004 QPELR 337 @ 7.)
The sub-section referred to in paragraph 16 refers the intention to non-city retail development. It indicates that the strip shopping areas will not include uses which might otherwise be permitted, if such a use could adversely affect the commercial activity in and the amenity of such areas. There were examples given such as vehicle repair workshops or a funeral parlour as permissible but likely to detract from amenity in the evidence of Mr Dance, town planner (T144/L30-T146/L15).
The reality is that the rezoning in 1998 has impacted on the site and immediate area. There is no light industry use in the areas described in the first three paragraphs of the judgment.
Aim 4 at 2.7 of the 1994 Strategic Plan is shortly stated as “To promote the establishment of developments which will add to the diversity of opportunities and add to the city’s economic base. Aim 4 includes 2.7.5:-
“(a) promoting a rational grouping where appropriate, of retailing and commercial activities into a range of centres of functional and size categories.”
It appears the proposal does not conflict with this aim.
Aim 6 includes reference to reliance on the Strategic Plan to promote realistic expectations. Given the significance of the zoning the Respondents submit there is no conflict with this aim.
Aim 8 is concerned with the promotion of an urban structure with high levels of mobility, convenience and accessibility. It is not in issue that the proposal assists in grouping retail facilities, is convenient and accessible.
The Appellant submits further that there are conflicts with City Plan 2005 based on the fact the land which the proposal is based remains in the Business and Industry Precinct under City Plan 2005.
City Plan 2005 having been prepared under the Integrated Planning Act incorporates elements required by the Act. The Act (S. 3.5.14(2)(a)) requires that approval should not compromise Desired Environmental Outcomes (D.E.O.). Reference was made by the Appellant to D.E.O.’s in S. 3.1 relating to economic vitality, equality and equity, and settlement pattern. The Appellant refers to the specific outcome in the Business and Industry precinct in particular the references to primarily accommodating small scale operations having a light industry character, and the nexus to industry adopted from the 1994 Scheme. It is pointed out the proposal is not small scale or related to industry.
It is suggested that the City Plan 2005 definition of “Shopping complex” which is an inconsistent use. The “Shopping Complex” definition includes “premises comprising any shop … having a gross lettable area of 600 square metres.”
It is submitted that even though the proposal involves a “single shop” it literally complies with the shopping complex definition. I do not think Council could have ever intended that a single shop constitutes a shopping complex.
Overall outcomes for the relevant district (District Code 4) include:-
“(d) retail and commercial land uses occur within defined centres, which are developed consistent with the parameters of the centre’s hierarchy.”
The D.E.O.’s for “economic vitality” and “settlement pattern” each make reference to “retail hierarchy.”
The co-respondent points to there being no adverse impacts, and says that even if the proposal does technically fall within the definition, the same level of assessment that would be required and has in fact taken place is identical.
Nonetheless, the fact City Plan 2005 seeks to preserve the retail hierarchy is noted.
The introduction of the showroom type B definition does indicate the Council’s planning intent for the relevant land. On the basis of this definition, there is no conflict with City Plan 2005. The proposal falls within the new definition.
A question arises as to whether the recently gazetted amendment should receive consideration in this appeal.
The Appellant submits that the events leading to the gazettal of the new showroom definition are such that the Court ought to be persuaded to ignore the amendment. The Appellant goes further submitting that the Court ought to express its disapproval of the Respondent Council’s management of the issue. It is submitted on behalf of the Appellant that the decision should be seen to be colourable. Section 4.4.52 of the Integrated Planning Act gives the Court the capacity to consider to give weight to new laws when determining a matter in accordance with an earlier scheme.
The chronology includes that before this Court gave its decision on 17 November last year, the Respondent Council had already endorsed the recommendation to review its definition of a showroom on 5 October 2004.
Exhibit 11 tab 4 indicates that Council advertised for expressions of interest from “suitably qualified consultants to undertake the review of the current definition of Showroom in the interests of alleviating the increasing numbers of associated litigations and preventing the attributed ‘big box developments’ emerging external to identified centre precincts.” The advertisement can be found in full at Exhibit 11 tab 4.
Mr Schonburgk submitted a proposal in response to the advertisement and said in evidence that he had contacted Council before doing so. That explains why it was that his proposal which appears at Exhibit 11 tab 5 refers to carrying out the review in two stages. Such an approach was not advertised. The advertisement invited those responding to it to ensure that submissions were received by not later than Friday 7 January 2005. Before that date and on 5 January proposals that had been received were reviewed on 5 January, by the Council’s Planning Department, apparently in the absence of the Director of Planning.
Apart from Mr Schonburgk’s proposal six other expressions of interest were received. When each of them was assessed by Council officers, it can be seen that Mr Schonburgk’s proposal rated second last. This can be seen at tab 12 of Exhibit 11.
The Council’s Director of Planning and Development Services had however appointed Mr Schonburgk for Stage 1 of the review on 23 December 2004. That appointment also included an indication that Mr Schonburgk would receive that officer’s recommendation to carry out Stage 2.
Whilst it is not suggested that any other proposal came in after 5 January and before 7 January it can be seen that perhaps any party preparing a proposal on or after 23 December 2004 was in reality wasting their time and the Council officer’s time expended in assessing the proposals was of no consequence because the appointment had already been made for Stage 1 with an indication that Mr Schonburgk would have support for Stage 2. It does not seem there was any need to appoint Mr Schonburgk before appraisal of the Applications. Whether or not the Director of Planning was acting on a direction or request is not known. I draw no adverse interest against him personally. If advertising for expressions of interest for planning type purposes is a charade purely for cosmetic purposes that can only lead to disrespect for the process. Council received the recommendation from its Director of Planning on 5 January 2005. The recommendation included reference to the fact that Mr Schonburgk was “uniquely qualified for this task having appeared as an expert witness in the Townsville and other Court cases including the Makro and The Warehouse appeals” – see tab 19 Exhibit 11.
On 3 May 2005 Council resolved to amend the definition and to request the Department to consider a shortened process. On 9 June 2005 in response to a submission from the Respondent Council of 17 May the Department indicated that it did not see the amendment as “minor” as a result of which public notice of the proposed amendment was given on 23 July 2005 calling for submissions by 2 September 2005. The Appellant did lodge a submission on the final date and on 4 October 2005 the Respondent Council decided to amend the definition. There were then in October a number of enquiries made of the Respondent Council by the Appellant’s solicitors as to whether the Council was seeking to rely upon the amendment for the purposes of the appeal. Three letters which included that enquiry were dated 12, 17 and 21 October 2005. The amendment has been noted was gazetted on the last mentioned date.
I have been referred to a number of authorities in relation to this aspect of the matter.
The cases considered are Chippendale Estates Pty Ltd v Sydney City Council (1966) LGRA 194; Lubrizoll Corporation Ltd v Leichhardt Municipal Council (1966) LGRA 203; Flinn v Bundaberg City Council (1972) 24 LGERA 408 and Sommerville v Logan City Council (1990) QPLR 264.
Chippendale Estates Pty Ltd v Sydney City Council involve the Municipal Council prohibiting the installation of petrol pumps after having earlier approved in conjunction with the Minister of Local Government and the police department the use of a parcel of land for a service station. From documents it was clear the Council did not address the question of regulating petrol pumps on the subject land. Whilst the Council had that power it was clear that the decision to prohibit the installation of the pumps was made to deprive the Appellant of its right to appeal the circumstances where there were no proper ground to refuse the consent. The Council’s action was held to be colourable because the power was “exercised in order to serve some ulterior purpose and place the matter beyond appeal by a purported exercise of this specific statutory discretion”.
The Lubrizoll Corporation Ltd case specifically refers to the decision in Chippendale. The case involved an application for a bulk terminal. There was a case in which the Applicant to Council had the onus of satisfying the Council that there would be no environmental damage. After an application for approval for use of the land on the Balmain Waterfront had been made and an appeal against the Council’s refusal lodged, a foreshore building line was fixed which affected the subject land. The application to Council had not been rejected by any notified indication that there was an intention to fix a building line. There was an absence of evidence showing that the Council had given any serious consideration to the question of whether a building line should be set and if set, where it should be. This decision was held to be colourable because the provision was introduced only on the basis that it would be advanced to defeat an appeal. In Flinn the Bundaberg Council had refused to permit use of land where there were residential premises for spraypainting purposes and after an appeal was set down for hearing, the Council proposed and resolved to amend the planning scheme to reclassify spraypainting and panelbeating as medium rather than light industry. The application to Council had been for a use to permit.
It was held in this case that the proposed amendment of the planning scheme was not something that should be treated as decisive in determining the appeal upon the basis that despite the small area of residential land involved, the residents residing in those properties were entitled to expect that their amenity would be considered when consideration was given as to whether a discretionary use should be permitted. It was held that it was no answer to say that the proposed use would be more suitable in another zone. The proposal was refused by the Court because of noise although the decision was reached on the basis that because of the circumstances the proposed amendment to the scheme could be ignored. In Sommerville’s case there was an application to rezone residential “A” zone land to special facilities (professional offices zone) and the Respondent Council adopted the recommendation by its Senior Planning Officer which proposed an amendment to the strategic plan which prohibited an application for rezoning of residential land for business purposes. No weight was given to the decision of the Respondent Council proposing to rezone as again in this case the decision was held to be a colourable one but alternatively it was considered that if it was not colourable and it had not been arrived at on an adequately based report and by the time of the hearing of the appeal the proposed amendment had not advanced to any significant extent on its legislative path.
In cross-examination Mr Schonburgk agreed that the showroom definition as amended did require some further amendment because for an approved use marketing methods such as selling goods at a discount can really have no place in determining the nature of the business activity as a permitted use.
It was pointed out on behalf of the Respondent Council that the above authorities each refer to the circumstance in which the relevant Respondent Council was endeavouring to prevent an activity rather than, as in this case, the Council is endeavouring to support a proposal. I did not think that argument persuasive.
This is an instance in which the Council when it originally approved the use as a showroom did have a good general idea of the nature of the business that it was proposed to conduct in the premises. Approval of the use as a showroom has since been disapproved. Amending a single definition without looking at the broader spectrum does carry an identifiable risk of distortion of the balance of the overall planning schemes particularly since the hierarchy of zones is maintained in the 2005 Scheme. The definition as gazetted appears to require some amendment. The advertisement and the history of the matter does suggest that the gazettal of the new showroom definition may well have been motivated to some extent by a desire to defeat the Appellant. I think a stronger motivation was a desire to approve the use. The length of the deliberations, the fact that Council’s action does not have reference solely to the subject site and the fact that the change has actually been gazetted, are each features which persuade me that I should pay some regard to the fact that the “showroom” definition has been altered. Of these features the gazettal is of particular significance.
The changes to the definition have to be viewed in a factual matrix which includes the fact that the Respondent Council’s application of its planning scheme had been challenged in the Courts, where lack of clarity in definitions became apparent.
The Appellant does not suggest a better use would be industrial. It submits the case is about the hierarchy, a locational issue, and one which is significant because of the size of the proposal, so large that the conflict is significant.
I consider that when one looks at the provisions of both the 1994 Planning Scheme and City Plan 2005, and the designation. There is an identifiable conflict with those provisions which seeks to establish the hierarchy, enabling an argument to be put that the proposal is an out of centre proposal. Authority supports the importance of definitions in the context of the service provided to the community in determining what activities may or may not be conducted within defined areas, and the desirability of maintaining strategic plans unless there are very compelling reasons.
When one looks at the zoning, it is incompatible with the designation. Whilst the appellant does not suggest a better use would be industrial, it does seem to me that the fact there is now no industrial be it light or otherwise in the immediate area does give support to the respondent’s and co-respondent’s submission the Strategic Plan designation in the subject area has been “taken over by events”. The designation was at the time of the application and under City Plan 2005 does not appear to me to be any longer appropriate following inspection.
The appeal has focussed on the designation. Whilst there are conflicts with designation, there are none with the commercial zoning. There are no need or amenity issues.
A considerable body of expert evidence was directed to an examination of whether the proposal was distinguishable from a discount department store. The evidence shows that The Warehouse Group operate with consistent marketing methodology and floor spaces at many locations including the Caboolture Shire. Many witnesses in Leda Holdings Pl v Caboolture Shire Council and Jeanfern Pty Ltd (decided in this court on 26th July 2005) also gave evidence in this case and to the extent the evidence was similar I have reached similar conclusions to those of Wilson SC DCJ including in particular, a preference for the evidence of Mr LEYSHON.
The evidence supported the proposition that Currajong is a low income area. The proposal would offer a wide range of products at discount prices.
The respondent’ Council’s reasons for approving the proposal are set out in paragraph 25. I am satisfied on the evidence that each of the factual matters mentioned in that paragraph are established. They refer to matters relevant to the question of whether there are good planning grounds to support the Council’s decision, even if my conclusion, that on proper analysis, there is no conflict is proven to be erroneous. Apart from the factual findings contained in paragraph 25, I am satisfied there are no unacceptable economic impacts, there are no unacceptable or traffic impact and there are no unacceptable amenity impact. In my view there are sufficient grounds to justify the decision if conflict is found, after taking into account the nature of the alleged conflicts.
For the reasons expressed, the appeal is dismissed.
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