Yu Feng Pty Ltd v Maroochy Shire Council
[1996] QCA 226
•10/07/1996
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | Appeal No. 122 of 1995 |
| Brisbane | |
| [Yu Feng P/L v. Maroochy Shire Council & ors.] | |
| BETWEEN: |
YU FENG PTY LTD.
(Appellant) Appellant
AND:
MAROOCHY SHIRE COUNCIL
(Respondent) First Respondent
AND:
ELFBAND PTY LTD and VANHOFF PTY LTD
(Respondents by Election) Second Respondents
FITZGERALD P.
PINCUS J.A.
MACKENZIE J.
Orders delivered 05/07/1996
Judgment delivered 10/07/1996
SEPARATE REASONS FOR JUDGMENT OF EACH MEMBER OF THE COURT, EACH
CONCURRING AS TO THE ORDERS MADE.
The appellant’s appeal to this Court and its Appeals Nos. 233 and 234 of 1994 to the Planning and Environment Court are allowed and the orders made below in those Planning and Environment Court appeals are set aside.
It is further ordered that the application by the respondents, Elfband Pty Ltd and Vanhoff Pty Ltd to the respondent Maroochy Shire Council for rezoning and town planning consent the subject of these proceedings be refused and that the respondents pay the appellant’s taxed costs of its appeal to this Court.
CATCHWORDS: | PLANNING AND ENVIRONMENT - combined rezoning and town planning consent application - proper construction of the draft strategic plan - construction of words such as “periphery” and “higher order retailing” - whether an error in the construction of a draft strategic plan constitutes a mistake or error in law - the “Coty principle” |
| Local Government (Planning and Environment Act) 1990 ss. 2.1(c), 2.15(9), 2.20(11), 4.4(3), 4.4(3)(b), 4.4(5A), 4.11(3), 4.13(5A), 7.4(3) H.A. Bachrach Pty Ltd v. Caboolture Shire Council (1992) 80 LGERA 230 Coty (England) Pty Ltd v. Sydney City Council (1957) 2 LGRA 117 D. & R. Henderson (Mfg) Pty Ltd v. Forbes (Collector of Customs NSW) (1974) 48 ALJR 132 Landau and anor. v. Goldwater & anor. (1977) 51 ALJR 172 Tamborine Mountain Progress Association Inc. v. Beaudesert Shire Council (Appeal No. 201 of 1993, unreported, 21 June 1994) Hope v. Bathurst City Council (1980) 144 CLR 1 Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 Allen v. Kerr (1995) Australian Torts Report 62,581 (¶81-354) Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 Life Insurance Co of Australia Ltd v. Phillips (1925) 36 CLR 60 NSW Associated Blue-Metal Quarries Ltd v. Federal Commissioner of Taxation (1956) 94 CLR 509 | |
| Counsel: | D.R. Gore Q.C. for the Appellant C. Hughes for the First Respondent G.J. Gibson Q.C. for the Second Respondents |
| Solicitors: | Barry & Nilsson for the Appellant Maroochy Shire Council Solicitor for the First Respondent Corrs Chambers Westgarth for the Second Respondents |
| Date(s) of Hearing: | 18 October 1995 |
| IN THE COURT OF APPEAL | [1996] QCA 226 |
| SUPREME COURT OF QUEENSLAND | Appeal No. 122 of 1995 |
| Brisbane | |
| Before Fitzgerald P. |
Pincus J.A.
Mackenzie J.
[Yu Feng P/L v. Maroochy Shire Council & ors.]
BETWEEN:
YU FENG PTY LTD.
(Appellant) Appellant
AND:
MAROOCHY SHIRE COUNCIL
(Respondent) First Respondent
AND:
ELFBAND PTY LTD and VANHOFF PTY LTD
(Respondents by Election) Second Respondents
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 10/07/1996
This is an appeal, No. 122 of 1995, from two judgments of the Planning and Environment Court
which were delivered on 19 May 1995. Four appeals, Nos. 231 and 233 to 235 of 1994, were heard
together in that Court and judgment in each was delivered that day. Subsequently, further orders were
made in Appeal No. 231 of 1994 on 17 August 1995. The appeal to this Court concerns the Planning
and Environment Court’s dismissal of the appeals to that Court by the present appellant ("Yu Feng"),
which were Nos. 233 and 234 of 1994.
In those proceedings, Yu Feng appealed from a decision of the first respondent Maroochy
Shire Council (“Maroochy”) whereby it approved a combined rezoning and town planning consent
application by the second respondents Elfband Pty. Ltd. (“Elfband”) and Vanhoff Pty. Ltd. (“Vanhoff”)
to rezone certain land situated at Broadmeadows Road, Maroochydore from residential “A” and
residential “C” zones to a Commercial zone - and to construct a shopping complex. By its appeal to
this Court, Yu Feng, the owner of a competing shopping centre in Maroochydore (“Big
Top/Maroochydore”) which objected to Elfband and Vanhoff’s application, contends that the Planning
and Environment Court erred in law in construing a Draft Strategic Plan for the Maroochy Shire which
existed at the material time. Before this Court, the appellant’s primary submission was that its appeal
to this Court should be allowed, that the orders made by the Planning and Environment Court in Appeal
Nos. 233 and 234 of 1994 on 19 May 1995 be set aside, and that those appeals to the Planning and
Environment Court Nos. 233 and 234 of 1994 be allowed. As an alternative to an order by this Court
that its appeals to the Planning and Environment Court be allowed, Yu Feng has requested that those
appeals be “remitted to the Planning and Environment Court to determine the appeals according to law
on the basis of the evidence already called and such other evidence as the [Planning and Environment]
Court allows to be called”. Yu Feng has also asked that its taxed costs of its appeal to this Court be
ordered to be paid by the respondents.
The Town Planning Scheme for the Maroochy Shire at material times, which included a
Strategic Plan, was gazetted on 14 December 1985 and had the force of law: Local Government
(Planning and Environment) Act 1990, sub.s. 2.15(9) and 2.20(11)). Elfband and Vanhoff's application was made on 31 January 1994. The Draft Strategic Plan to which reference has been made
was advertised during June 1994, but had not been gazetted when Maroochy's decision on Elfband and
Vanhoff's application was made on 1 July 1994. Before this Court, it has been accepted by the parties
that Yu Feng’s appeal falls to be decided by reference to the Town Planning Scheme and Draft
Strategic Plan as at the time of Maroochy’s decision, and the Court has accordingly proceeded on that
basis. It was also common ground that, while the Draft Strategic Plan did not have the force of law, it
was of major significance in relation to Elfband and Vanhoff’s planning application; the Planning and
Environment Court noted in its judgment that the Draft Strategic Plan had “progressed a substantial
distance along the statutory path to gazettal”, and that it was not disputed by the parties that it was
“entitled to considerable weight”. Later, these views were substantially repeated in a passage which
again emphasised the importance of the Draft Strategic Plan, the Planning and Environment Court said:
“The strategic plan ... is towards the end of its life, whereas the draft strategic plan is well along the path
to gazettal and may within a short time be the new strategic plan for the Maroochy Shire.”
The effect of the Draft Strategic Plan, and whether Yu Feng had grounds for appeal to this
Court if the Planning and Environment Court misconstrued or misapplied the Draft Strategic Plan, are
the fundamental issues for this Court's resolution. It was common ground that there were no
jurisdictional issues involved, and that Yu Feng’s appeal is limited to any errors or mistakes in law by
the Planning and Environment Court Act (s. 7.4(3)). Its grounds of appeal were as follows:
“GROUNDS OF APPEAL
1. The Primary Judge erred in law in construing the draft Strategic Plan so as to regard the proposed development as being contemplated by the expression ‘retail warehousing and other retail and commercial development which requires large display areas and tends to rely on accessibility by private transport’.
2. The Primary Judge erred in law in that on the proper construction of the draft Strategic Plan the proposed development should be viewed as a Subregional Centre which substantially cuts across the draft Strategic Plan.
3. Upon the proper construction of the draft Strategic Plan, the Primary Judge erred in law in concluding that the proposed development is within or part of the Regional Centre of Maroochydore.
4. The Primary Judge erred in law in his interpretation of the terms ‘higher order retailing including national department stores’ and ‘at the periphery of the centre’ in the draft Strategic Plan.
5. The Primary Judge erred in law in that the proposed development is contrary to Objective 4.1 of the draft Strategic Plan in that it does not consolidate and encourage the growth and development of the retail/commercial centre hierarchy. Furthermore, the proposed development is contrary to the introductory words of Objective 4.1.
6. The Primary Judge erred in law in failing to give sufficient reasons for judgment for the conclusions referred to in grounds 1, 3 and 4 hereof.”
(It will be unnecessary to make further reference to ground 6.)
The site which is the subject of Elfband and Vanhoff’s proposal is located about 750 metres
west of the Maroochydore Central Business District[1], which is a “Major Commercial Centre” within
[1] The Planning and Environment Court judgment contains a number of references to the location of “Maroochydore Marketplace”; for example, in addition to that just referred to, the judgment states that the site is “separated by a distance of 500 or so metres from the edge of the present town centre of Maroochydore” (p. 16); “is 500 to 700 metres from the core and is separated from the core and frame area of the centre by the Maroochydore Primary School” (p. 31), and “is 500 to 700 metres away from retail development in the centre”. (p. 32)
the Maroochy Shire Strategic Plan. The proposed shopping centre, to be called “Maroochydore
Marketplace”, is intended to have a gross floor area of 20,450 square metres and to include the
following retail facilities:
| . | a “Big W” discount department store - 6,500 m[2] |
| . | a Woolworths’ supermarket - 4,500 m2 |
| . | a mini-major department store - 780 m2 |
| . | about 60 specialty shops - 4,720 m2. |
As I understand its judgment, which is lengthy and in parts not as clear as might be wished, the
Planning and Environment Court found that “Maroochydore Marketplace” would conflict with the
Maroochy Shire Strategic Plan because the Strategic Plan envisaged that a complex such as
“Maroochydore Marketplace” would be developed “upon” the existing Maroochydore Central
Business District, i.e. “in” or “adjacent” to it, not “by the creation of a new centre ... cheek by jowl” with
the existing Maroochydore Central Business District. The distinction between developments which are
“adjacent” and those which are “cheek by jowl” is rather subtle, but, using the Planning and Environment
Court’s lexicon, the significant feature was that “Maroochydore Marketplace” could not “be seen as
part of” the existing Maroochydore Central Business District. Because the “Maroochydore
Marketplace” application conflicted with the Strategic Plan, Maroochy was required to refuse the
application (Act sub.s. 4.4(5A) and 4.13(5A)), unless there were "sufficient planning grounds to justify
approving the application despite the conflict". By virtue of sub.s. 4.11(3) of the Act, it was necessary
that there be "sufficient planning grounds to justify approving" each component of Elfband and Vanhoff's
combined application despite its conflict with the Maroochy Shire Strategic Plan; that is to say, "to
justify approving" each of the rezoning application and the application for town planning consent.
Before dealing with the relationship between the “Maroochydore Marketplace” application and
the Maroochy Shire Draft Strategic Plan, it is desirable to note more of the context by reference to other
parts of the Planning and Environment Court’s judgment.
By sub.s. 4.4(3) of the Act, in considering the rezoning component of the “Maroochydore
Marketplace” application, Maroochy was required to “assess” each of a number of specified matters
“to the extent they are relevant to the application”. Some of those matters, for example, “the need for
the proposed planning scheme amendment” (Act, sub.s. 4.4(3)(b)), were contested in the Planning and
Environment Court, which found in favour of the “Maroochydore Marketplace” application. For
instance, the Court rejected the contention that “existing and approved retail floor space”, together with
“other substantial or concrete proposals”, would “exceed the demand there for by 2000-01", and
expressed satisfaction that “if ‘Maroochydore Marketplace’ were developed and in operation by late
1996 or early 1997 it would attract a sufficient turnover to be a viable operation.” Further, in relation
to the “fundamental difference” between experts called by the parties “on the question of market
shares”, the judgment preferred the more optimistic opinion of Elfband and Vanhoff’s expert and
concluded that, even if Yu Feng’s expert were correct, “... the result will be that Maroochydore
Marketplace will have a few lean years before it is comfortably established in the retail network. That
is not, in my opinion, a reason to reject the development.”
The Planning and Environment Court also considered the “economic impact” which
“Maroochydore Marketplace” would have upon “other retail establishments in the network”, which was
estimated at in excess of $50 million. The “greatest impact in terms of dollars” was expected “upon the
regional and sub-regional centres in the retail network, that is to say Kawana Shoppingworld”, another
centre located to the south of Maroochydore at Kawana Waters, and
“Sunshine Plaza”, the largest shopping centre in Maroochydore which is owned by another appellant
in the Planning and Environment Court, Lend Lease Retail Projects Pty Ltd. Approximately 30 to 33%
of the amount of “Maroochydore Marketplace’s” anticipated “economic impact” was expected to be
drawn from “Sunshine Plaza”, 25 to 35% from “Kawana Shoppingworld” and 10 to 23% from Yu
Feng’s “Big Top/Maroochydore” shopping centre. Overall, the Planning and Environment Court
seemed to prefer the lower percentages referred to in relation to “Big Top/Maroochydore” and
“Kawana Shoppingworld”, and stated conclusions that:
(i) the additional shopping facilities at ‘Maroochydore Marketplace’ would “... not represent so much a duplication of ... goods... but [add] to the range of depth of those goods.” and “... represent genuine shopping alternatives rather than a mere duplication of shopping facilities.”, and
(ii) “... adverse impacts upon other retailers, although significant will, for the most part, be overcome within three years or sooner, having regard to the high population growth expected on the Sunshine Coast and the consequent expansion in facilities to be expected in that region. I do not consider that the economic impact of Maroochydore Marketplace upon other traders, although significant, is such as to out-weigh the benefits of establishing Maroochydore Marketplace to meet a retail need for that development.”
The Planning and Environment Court then continued:
“Viability, or demand for retail floorspace is not the only issue to be considered in considering whether or not an economic need for a proposed development has been established. In my view it is the central issue, and was so regarded in the present case. In addition to that there are the issues whether or not the proposal represents an increase in shopping choices available to the public and whether the proposal adds to shopping convenience to the public. On both those issues I consider that Maroochydore Marketplace establishes a positive case. I have already indicated that the shopping facility represents, in my view, not merely duplication of other facilities but a choice between products, and the evidence indicates that a significant number of shoppers prefer not to do their convenience shopping in the Maroochydore Town Centre because of access and parking difficulties and in fact bypass Maroochydore to do such shopping at Kawana Shopping World. There is a degree of ‘escape’ expenditure from Maroochydore Town Centre which goes to Kawana Shopping World. Maroochydore Marketplace is situated so as to win that expenditure from Kawana Shopping World and also to afford to shoppers from the north and west of Maroochydore an alternative destination for day-to-day or convenience shopping, thus saving them the necessity of travelling into the Maroochydore Central Business District.
Further, there is no evidence of particularly low occupancy rates in the Maroochydore Town Centre, notwithstanding the increased competition which traders there have had to contend with in recent times, and there is in addition a commitment to the proposed centre from a major tenant, Woolworths, which is taken to be some indication that there is a demand for such a centre.
PLANNING NEED
Planning need is no doubt a more general issue than economic need, but it seems to be obvious in cases such as this that unless there is an economic need there will be no planning need. It is therefore essential that the evidence establish, as I consider it has, that there is an economic need for a shopping centre such as Maroochydore Marketplace within the Sunshine Coast retail network. The issue of planning need then focuses upon the question whether the particular development proposed should be permitted, involving as it does an amendment to the planning scheme. This involves a consideration of planning principles, and in particular the provisions of the strategic plan and the draft strategic plan. Conflict with the strategic plan is of particular importance by virtue of the statutory provision in that regard. Apart from that, however, a consideration of planning principles necessarily, it seems to me, involves a consideration of the expression of those principles in the strategic plan and the draft strategic plan ...”
I will come back to the Planning and Environment Court’s discussion of the “Maroochydore
Marketplace” application by reference to the Maroochy Shire Draft Strategic Plan, but first propose
to note the remaining portions of the judgment with respect to other issues. The Court said:
“ OTHER ISSUES Need, and consistency or otherwise with the provisions of the planing scheme were the major issues in the case. Other issues were amenity, the balance of Zones, traffic and conditions attached to the respondent’s approval of the application. These matters became of less significance as the case progressed. There are minor matters still to be agreed in relation to the conditions. So far as amenity is concerned the evidence of the architect, the landscape architect, the acoustic expert, the town planner and the neighbouring residents called by the applicant satisfied me that the proposed development would not seriously detrimentally effect the amenity of the neighbourhood. Most of the neighbouring residents indeed welcomed the development as a much preferable use of the site than a high density residential use. It appeared to me that the development had been carefully and thoughtfully planned to reduce and soften the impact of the structure upon the adjoining residential area to a point where it could sit reasonably comfortable in that environment. The conditions attached to the combined rezoning/consent approval required the preparation of an environmental management plan and that seems to make adequate provision for the construction and management of the shopping centre consistently with the proposals which were given in evidence.
Traffic was initially a major issue but has in substance been resolved. There is an agreement in principle between the applicants and the Department of Transport in relation to the widening of Maroochydore road to four lanes in front of and to the west of the shopping centre. There is a minor outstanding matter which is the subject of one of the conditions attached to the approval and which I expect it will be possible for the parties to resolve.
There was some discussion in the case as to whether the removal of the subject site from the residential C zone would have a significant impact upon the balance of zones in Maroochydore. However I am satisfied that there are suitable and adequate alternative development options available for higher density development in the locality and that there will not in fact be an adverse effect upon the balance of zones.”
As appears from its grounds of appeal, which are set out above, all the mistakes or errors in
law which Yu Feng submits were made by the Planning and Environment Court relate to its
“construction”, “interpretation” or implementation of the Maroochy Shire Draft Strategic Plan. (I am
omitting reference to ground 6, as earlier indicated.) I propose to start with a consideration of ground
3 and part of ground 4, which became referred to in argument as the “periphery” issue. It has earlier
been noted that the Planning and Environment Court found that the “Maroochydore Marketplace” site
could not “be seen as part of” the existing Maroochydore Central Business District. Ground 3 asserts
that the Court nonetheless held that the site “is within or part of the Maroochydore Regional Centre”,
and ground 4 asserts, in part, that the Planning and Environment Court erred in its “interpretation of the
terms ... ‘at the periphery of the Centre’ in the draft Strategic Plan.” The term “Regional Centre” is one
used in the Draft Strategic Plan; the Planning and Environment Court held that the Maroochydore Regional Centre encompassed, but extended “well beyond”, the Maroochydore Central Business
District, sometimes referred to as the “core”, and that conclusion has not been challenged. It also
emerged that there is residential development and a school between the Maroochydore Regional Centre
and the “Maroochydore Marketplace” site.
Before discussing the “periphery” issue or any of Yu Feng’s other grounds of complaint, it is
desirable to set out a passage which is to be found towards the conclusion of the Planning and
Environment Court’s judgment. The Court stated:
“... The strategic plan contemplated, but did not provide for, a hierarchy of major retail centres, whereas such a hierarchy is provided for in the draft strategic plan. The hierarchy starts with the regional centre at Maroochydore and proceeds downwards with the sub-regional centre at Nambour, a district centre at Coolum and other district centres envisaged, and below that neighbourhood centres etc. ...
... I consider that general town planning principles and the statutory instruments in this case combine to indicate that it would not be appropriate for a development such as Maroochydore Marketplace to be situated where it is proposed to be situated if it is to be seen as a sub-regional centre in its own right. Certainly the draft strategic plan does not contemplate a separate sub-regional centre in Maroochydore. I think it is right to say, that viewed in isolation, Maroochydore Marketplace is a sub-regional centre. As such, in my view, the draft strategic plan does not contemplate its establishment on the site or in the general area proposed. I also consider that viewed as a centre distinct from, and therefore competing with the Maroochydore Town Centre, its development on the site proposed would be contrary to good town planning principle in that its effect would be to fragment the town centre rather than to consolidate it, and good planning principle seems to me to require that the regional centre be consolidated rather than fragmented. If therefore Maroochydore Marketplace is to be regarded as a centre in its own right and not as part of a larger centre I do not think that its development is justified in terms of the statutory instruments or in terms of general town planning principle. The view taken by the Council in this case, however, is that the development should be seen as part of the regional centre. There can be no objection to portions of the regional centre having district and/or sub- regional features. Indeed, that is what one would expect. If it is part of the regional centre then its effect is to consolidate the regional centre, viewed as a whole, and not to fragment it. It might, if configured differently, be acceptably situated in the central business district, although there was no really convincing evidence of an appropriate site which was available for this purpose. ... the proposed
development is not simply for a supermarket, discount department store, mini-major and a range of specialty shops in whatever configuration may be possible for the purpose of locating in the Maroochydore C.B.D. The proposal is for a free-standing centre on one level with at- grade parking, which makes it entirely unsuitable for location within the central business district. Moreover, the draft strategic plan contemplates the establishment of developments such as Maroochydore Marketplace at the periphery of the regional centre. If the development can be so located there is no inconsistency with the draft strategic plan, and there is no inconsistency with any significant principle of town planning.”
On analysis, that passage seems to me to contain the following propositions:
(i) “... viewed in isolation, Maroochydore Marketplace is a sub-regional centre”;
(ii) “if ... Maroochydore Marketplace is to be regarded as a [sub-regional] centre in its
own right and not as part of a larger centre”, i.e. if it is “...viewed as a centre distinct
from, and therefore competing with” the Maroochydore Central Business District:
(a) “... the draft strategic plan does not contemplate its establishment on the site or in the general area proposed”;
(b) “... general town-planning principles and the statutory instruments in this case
combine to indicate that it would not be appropriate for ... Maroochydore
Marketplace to be situated where it is proposed to be situated ...”;
(c) its effect “... would be contrary to good town planning principle in that its effect
would be to fragment the town centre rather than consolidate it, and good
planning principle seems ... to require that the regional centre be consolidated
rather than fragmented”; and
(d) “its development is [not] justified in terms of the statutory instruments or in
terms of general planning principle”;
(iii) if “Maroochydore Marketplace” is to be approved, it must be “part of the [Maroochydore] regional centre”, although (i) not part of the Central Business District
and (ii) “having district or sub-regional features” ... “If it is part of the [Maroochydore]
regional centre, then its effect is to consolidate the regional centre, viewed as a whole,
and not to fragment it”; and
(iv) “... the draft strategic plan contemplates the establishment of developments such as
Maroochydore Marketplace at the periphery of the regional centre. If the
[“Maroochydore Marketplace”] development can be so located there is no
inconsistency with the draft strategic plan, and there is no inconsistency with any
significant principle of town planning.”
The critical importance of the “periphery” issue to the decision reached by the Planning and
Environment Court is obvious. In order to understand the reference to the “... periphery of the
[Maroochydore] regional centre ...” in the Planning and Environment Court’s judgment, it is necessary
to return to the Court’s earlier discussion of the Maroochy Shire Draft Strategic Plan, large portions of
which were set out in full. Although it is unnecessary to quote all that was stated in that judgment,
repetition of some passages will be useful. While I will initially concentrate on the passages in the
Planning and Environment Court’s judgment relating to the “periphery” issue, portions of the judgment
which it is proposed to set out in relation to that issue are also material to other grounds.
After stating that the “... sections of the draft strategic plan of most relevance to the present
matter are those dealing with Urban Development, which is section 3 of the Plan, and with Retail and
Commerce, which is section 4 of the Plan”, the judgment concluded that “Maroochydore Marketplace could not be justified by reference to” the material portions of section 3 and that “the substantial
question is whether and in what way the development of Maroochydore Marketplace can be justified
in terms of the apparent objective in section 4 of the Draft Strategic Plan to support and develop the
existing retail hierarchy.”
So far as immediately material, the judgment of the Planning and Environment Court then dealt
with s. 4 of the Maroochy Shire Draft Strategic Plan as follows:
“The treatment of Retail and Commerce in section 4 of the draft Plan involves a definition of that expression, a statement of key issues dictating the planning strategy and then details of the strategy itself, followed by a statement of objectives and implementation criteria. ‘Retail and Commerce’ is defined to include the ‘people servicing activities which provide goods and services for the personal use of, or consumption by, the purchaser and which tend to collect as business centres in urban areas.”
The statement of ‘key issues is (in part) as follows:-
‘The key issues dictating the planning strategy in the designated retail and commercial
areas include:
. A retail hierarchy has formed with the Sunshine Coast’s Regional Centre at Maroochydore, so designated because of its centrality to all of the coastal centres, the existence of many regional public sector offices and the fact that it includes Sunshine Plaza which houses the only large national department store on the coast; ...
The Retail and Commercial Strategy is set out (in part) as follows:
‘Regional Centre
.
The regional centre is to be promoted as the business centre of the Shire and of the Sunshine Coast generally;
.
its core centres on established commercial development around the Ocean Street/Horton Parade intersection;
.
retail, commercial, service and administrative facilities are to be permitted, with higher order retailing, including national department stores, being encouraged in the core area of this centre and the sub-regional centre over the other levels in the hierarchy;
.
the Council encourages the establishment of State and Federal Government offices, private office buildings, a comprehensive range of commercial support services and public transport interchanges, primarily in the core area;
.
the core area is intended to remain compact, to enable patrons to walk between its component parts. Development is encouraged or required to provide pedestrian accessways providing direct links between retail and commercial facilities, carparking areas and other commercial sites;
.
Council encourages mixed-use development which increases accessibility between residential and commercial uses, enlivens the commercial area outside normal business hours, increases the potential for viable public transport nodes and interchanges and provides alternative housing options, provided that it does not fragment continuous retail shop fronts. Other uses considered compatible with the centre’s role include visitor accommodation, service entertainment, recreational uses and community facilities;
.
retail warehousing and other retail and commercial development which requires large display areas and tends to rely on accessibility by private transport are encouraged to establish at the periphery of the centre;
.
Council intends preparing detailed local area plans during the life of this strategic plan to address land use distribution issues within the centre and to direct Council investment in streetscaping and traffic management;
...’ The strategy also deals with town centres ... The strategy in relation to town centres is generally to ensure that existing town centres retain their role as the principal retail and commercial service centres of their towns ... Uses such as retail showrooms, commercial recreation and repair and maintenance services are not generally considered appropriate in town centres unless they are required to satisfy a local need.
Objective 4.1 and the implementation criteria relating to the regional centre ... are now set out:-
‘4.1 To consolidate and encourage the growth and development of the
retail/commercial centre hierarchy.
Encouragement of a retail and commercial hierarchy protects the investments made in
existing centres and promotes private and public sector confidence in, and public
knowledge of, the Council’s continuing commitment to that investment. It also provides
a basis for containing the growth and function of centres, limiting their spread into the
residential area in which they play a fundamental role and facilitating the concentration
of certain uses in highly accessible and appropriately services area.
IMPLEMENTATIONThe Council will have regard to the following criteria when assessing applications for development in the centres classified below.
Regional Centre (Maroochydore)
1. Consolidation of commercial and retail development on land currently in the Central Business zone is encouraged prior to approval being granted for additional commercial rezonings.
2. All development in the retail and commercial core is to contribute towards a continuous retail shop front at street level. The Council will generally refuse applications in this core for retail showrooms or other uses, the ground floor activities of which may fragment this objective.
3. All applications in the retail and commercial core are to be designed to maximise pedestrian accessibility between premises.
4. Specific consideration is to be given to retail showrooms and other land consumptive uses which would fragment the core area. Such uses may include service stations, offices, service industries, residential uses, motels and carparking areas. Council will favourably consider applications which provide for the grouping of such development along those parts of Horton Parade, Aerodrome Road, Cornmeal Parade, First Avenue, Maud Street and Sugar Road outside the core area. Special Facilities or other zoning may be contemplated in some cases to limit potential land uses. Consideration may also be given to such uses in the core area where they are located above street level.
5. Mixed use development is facilitated and encouraged, where individual uses are permitted to operate independently of each other and where proposals will not compromise street level shop front objectives.
6. Council is committed to continuing its investment in streetscaping, traffic management, public places, public transport terminals and interchanges and other capital works aimed at enhancing the commercial and personal environment in the retail and commercial core.’
...” I do not propose to discuss those provisions of the Maroochy Shire Draft Strategic Plan in
detail. Reference will later be made to particular phrases which featured in the parties’ competing
submissions. However, speaking generally, there is abundant support in the Draft Strategic Plan for the
Planning and Environment Court’s conclusion, set out above, that the approval of “Maroochydore
Marketplace” would be inconsistent with the Draft Strategic Plan unless the site of the proposed
development was, at worst for Yu Feng, at the “periphery” of the Maroochydore Regional Centre.
After reference to the provisions of the Maroochy Shire Draft Strategic Plan, the Planning and
Environment Court’s judgment proceeded to discuss the “description of the retail hierarchy” which was
contained in the passage set out above in the portion dealing with “key issues”; it was said that the “retail
hierarchy” described there “conforms to the draft strategic plan map and appears to refer to that map.”
After reference to the “regional centre ... at Maroochydore, the sub-regional centre at Nambour ...”
etc., the judgment continued:
“Each of the named centres is situated in an urban area which is so depicted on the plan map. The centres themselves are depicted by circles on the map, coloured blue. The draft strategic plan does not, so far as I can see, state that these circles are merely indicative of the location of the centres as was the position with the strategic plan. In the case of the strategic plan the indication (a red star on a black circle) was the same in respect of each of the centres. On the draft strategic plan map the circles are of different size, e.g. that for Maroochydore is larger than that for Nambour, with the symbol for Coolum being smaller and the symbol for the neighbourhood centres being smaller again.
One cannot, of course, infer precise or perhaps even general boundaries of the centres from this circumstance, but it certainly seems to be the case that Maroochydore as a regional centre extends well beyond the town centre, understanding that expression to mean the retail and business centre of Maroochydore, or the central business district.
In the draft planning study, Maroochydore is referred to as ‘the emerging regional centre’.
The regional centre has a core which is said to be centred on established commercial development around the Ocean Street-Horton Parade intersection. By necessary implication the regional centre extends beyond the core. Higher order retailing, including national department stores, are encouraged under the plan to establish in the core area. Government offices, office buildings, commercial support services and public transport interchanges are also encouraged to establish in the core area. It is intended that the core area should remain compact to enable patrons to walk between its component parts and that there be pedestrian access between retail and commercial facilities. Retail warehousing and other retail and commercial development requiring large display areas and tending to rely on accessibility by private transport on the other hand are encouraged to establish at the periphery of the centre. This must I think be understood in the sense that the periphery of the centre will be some distance from the periphery of the core. The development proposed in this case is a development of a stand-alone shopping complex comprising a major supermarket, a discount department store, a mini-major department store and a range of specialty shops with provision for ground level parking. It seems to me to be tolerably clear that such a development is one which requires large display areas, in so far as it includes a major supermarket and a discount department store and it certainly is a development of the sort which tends to rely upon accessibility by private transport. It seems to me to follow that Maroochydore Marketplace, if it were to be established as part of the regional centre, should be established at the periphery of that centre. I consider that the reference to ‘higher order retailing including national department stores’ is not intended to include a development which is based on a major supermarket and a discount department store. I would think that the expression in its context is a reference to speciality shops and a major department store or stores where high level comparison shopping tends to be carried out. No doubt comparison shopping would occur at an establishment such as Maroochydore Marketplace, but in my view it would be of a lower order and would not properly be characterised as ‘higher order retailing’, as that expression is used with reference to the Regional Centre. ...
The requirement of compactness relates to the core area, and the required provision of pedestrian accessways providing direct links between retail and commercial facilities, carparking areas and other commercial sites appears to me also to relate to the core area. Such considerations are of less moment in relation to a facility such as Maroochydore Marketplace located on the periphery of the regional centre and accessed principally by private transport.
These considerations, referred to in the strategy for the regional centre, are reinforced in the implementation criteria in which emphasis is given to the importance of a continuous retail shop front at street level in the retail and commercial core and to pedestrian accessibility between premises in that core. Those considerations point, again, to the appropriateness of locating a facility such as Maroochydore Marketplace, not in the core and not even at the periphery of the core, but at the periphery of the centre.”
It is convenient to interrupt the Planning and Environment Court’s judgment at this point to
continue the long passage from towards the end of the judgment which was analysed prior to discussion
of the “periphery” issue. Following that passage, the judgment went on:
“I have already indicated that in considering an expression such as the ‘periphery of the centre, in the draft strategic plan, one cannot sensibly look only at the dimensions of the centre at the beginning of the plan because the contemplation is that the centre will grown during the life of the plan and thereafter, and it must be presumed that the Council is concerned with development which is proper not only at the beginning of the plan but will be so for the life of the plan thereafter. Consequently, it is reasonable for the Council to take into account where it thinks the periphery of the centre may reasonably be in five or ten years’ time. Otherwise it must face the situation that a development which was at the periphery of the centre when it was developed may be well within the centre some years later and constitute a highly inappropriate and fragmenting development within the centre.
I take the view then, that there is a ‘need’ in the planning sense for the development of Maroochydore Marketplace on the site proposed because it will consolidate and support the regional centre, viewing the regional centre in a dynamic rather than in a static way, and because it is consistent with the retail hierarchy established in the draft strategic plan.”
In the first of those two paragraphs, the Planning and Environment Court’s judgment referred to what it had “... already indicated ...”. The earlier passage was as follows:
“The draft strategic plan will have a life of some 7 to 10 years and may take into account in its planning a longer time period up to, say, 20 years. The Shire and the Sunshine Coast in general is experiencing considerable growth and the Council expects that growth to continue throughout the life of the draft strategic plan. Whatever point may be thought to mark the periphery of the regional centre at the moment, such as the edge of commercial development surrounding the core, it is highly likely that that periphery will move outwards during the life of the draft plan. If development occurred at the present periphery of the regional centre then the likelihood is that within a few years that development would find itself within, and not at, the periphery of the regional centre, and the intentions and objectives of the Council in that respect would be frustrated. In considering what is intended by the term ‘periphery’ in this context, it seems to me to be essential to take a forward view and to consider not what the periphery might presently be thought to be, but where it may reasonably be thought to be within the next (say) 10 years. Planning for the benefit of the public, if it is thought to require that some uses be established at the periphery of an area, requires that the matter be looked at in a reasonably long term timeframe. The regional centre is now to become the business, government and administrative centre of the Shire, and no doubt of the Sunshine Coast generally. Under the strategic plan Nambour was to be the government and administration centre whereas it has now been relegated to the status of the sub-regional centre, incorporating the ‘rural oriented sections of government and private enterprise’. Further additions to the regional centre over the next 10 years are likely to include the Shire Council offices, Telecom offices, Department of Transport offices, a Civic complex, more retail development and office development, a rail link, and in the frame area, roadworks and a university.
In the present case it is clear that the proposed location of Maroochydore Marketplace is not in the core of the centre and it is not immediately adjacent to the centre. It is 500 to 700 metres from the core and is separated from the core and frame area of the centre by the Maroochydore Primary School. Nevertheless, it is not unlikely that retail and commercial development will extend in a generally westerly direction towards the site of the development in the next 5 to 10 years. In my opinion it is as likely that development will occur in this direction as in any other, and in fact the evidence discloses commercial development in that direction.
It makes in my view little difference to the question, but it may be that that development will include the land presently occupied by the primary school. Even if it does not, educational establishments are a consent use in both the Central Business and Commercial zones. The development of Plaza Parade and the Evans Street link which borders on the subject land and links up with Duporth Avenue provides, in my view, some encouragement for expansion of the regional centre in that direction.
Moreover, the expression ‘at the periphery of the centre’ in the draft strategic plan does not necessarily refer to a position immediately adjacent to, or abutting the centre. Understanding ‘the centre’ to comprise a core and frame area, the intention, as I would understand it, is principally to exclude such a development from the core and frame, and to position it outside these areas in a location where it is still associated with the centre. In that fairly loose sense the phrase may be equivalent to ‘on the outskirts of the centre’ and the distance involved from the boundary of the centre may be a function of the size of the centre. One would expect the distances to be quite different in the cases of a large world metropolis, on the one hand and a small provincial Queensland town on the other. Mr Deane’s view is that from a regional perspective, Maroochydore Market Place can be considered to be at the periphery of the regional centre, although it is 500 to 700 metres away from retail development in the centre. In general, I accept that proposition.
There is also the point, that ‘encouragement’ to establish at the periphery in the loose sense which I attribute to that phrase falls short of a requirement to do so, and means that even if the proposed development should be seen as a little more remote than ‘at the periphery’ this does not necessarily produce any inconsistency with the draft strategic plan.
In my opinion, the Council, so far as the draft strategic plan is relevant, were entitled to approve the application on the footing that it was an application which it was appropriate to locate at the periphery of the regional centre bearing in mind that the regional centre would expand over the life of the draft plan, in the absence of detailed local area plans or draft development plans showing development in that direction to be unlikely. It may be, as was submitted, that the proposed development, if approved, will act as a constraint in the preparation of the local area plans or development control plans. However, in my opinion, it would not be a proper exercise of power or discretion by the Council or this Court to refuse the application on that ground. The application should be dealt with in the circumstances existing at the time. The argument, if accepted, would prevent any significant development requiring an amendment to the planning scheme until such time as the plans are prepared, if they ever are, and would involve an abdication by the Council of its responsibility under the legislation.”
I will, before discussing the “periphery” issue, set out the remaining passages of the Planning and
Environment Court’s judgment which refer to matters which are the subject of Yu Feng’s grounds of
appeal. The additional material parts of the judgment are as follows:
“The developer appellants also contend that Maroochydore Marketplace is consistent with the retail hierarchy outlined in the draft strategic plan in that it will constitute a new district centre. (The appellants contend that the development will be at the periphery of the regional centre in the future, and in the meantime it is a district centre. The Council contends that the development is presently at the periphery of the regional centre.) The implementation provisions in relation to the district centre are somewhat confusingly worded. In para. 13 it is quite clear that the document is referring to the district centre at Coolum, being the only district centre so designated on the plan map. In para 14 it seems that district centres in general are being considered particularly because of the reference to ‘retail cores’. That para. 14 applies not only to Coolum, also derives some support from the fact that much of its language is repetitive of para. 13. Similarly para. 15 could be construed as applying only to Coolum or to district centres in general. In para. 16 it appears that Mooloolaba is being treated as a district centre in addition to Coolum. This repetition of language is again to be found in para. 16 which deals with the cases of Coolum and Mooloolaba. However, these matters are perhaps not of great moment in the implementation criteria. So far as these are concerned the developer appellants focus upon para. 17 which contemplates the establishment of additional district centres provided that the existence of such a centre is necessary to ‘cater for unsatisfied demand or to allow systematic development of a particular area.’
In the ‘Retail and Commercial Strategy’ the appellants focus on the paragraph which states:-
‘land uses permitted in the district centre primarily satisfy the day to day shopping and commercial needs of surrounding but indiscrete residential areas and because of its location or accessibility to major arterial roads, the convenience needs of passing motorists. The district centre would typically include a major supermarket and possibly a discount department store, though Coolum’s size presumably will not support one at present;’.
The appellants contend that Maroochydore Marketplace does primarily satisfy day to day and convenience shopping of the immediate local community but that it does also, partly because of its accessibility on a major arterial road, and partly because of the presence of the discount department store and specialty shops, serve the needs of a larger indiscrete residential area and the convenience needs of passing motorists. The proposal does of course include a major supermarket and a discount department store, and the reference to those matters must be to district centres generally and not merely to Coolum. The combination of a major supermarket and a discount department store with or without specialty shops does not in itself constitute a district centre or a sub- regional centre. It may constitute a district centre for the purposes of the draft strategic plan but its catchment may be such that it is more appropriately regarded as sub- regional. In those circumstances such a facility should be located, in my view, in the sub-regional centre (Nambour) and not at a district centre, or itself comprise a new district centre. The size of Maroochydore Marketplace and its composition is such that it has a tertiary north catchment extending up to Noosa and a tertiary west catchment extending west of Nambour. It appears to me that the expression ‘unsatisfied demand’ in para. 17 of the implementation criteria can be better understood in terms of the discussion under the ‘Retail and Commercial Strategy’ heading, where the reference is to satisfying the day to day shopping and commercial needs of surrounding but indiscrete residential areas. It seems to me that what is contemplated is demand which can be so described and that the expression ‘surrounding but indiscrete residential areas’ is not intended to encompass more than an area such as the primary catchment area in this case. In my view the proposed Maroochydore Marketplace would satisfy a demand much greater than that envisaged in the case of a district centre and even though it may at the same time cater for unsatisfied demand in that sense, it exceeds that function to such an extent as to disqualify it in my view from categorisation as a district centre. In addition to that, I consider that unless the proposed facility can properly be viewed as a part of the regional centre then its presence so close to the regional centre, viewed against the retail hierarchy outlined in the draft strategic plan cannot be regarded as a systematic development of a particular area. It is development, in those circumstances, which is contrary to the structure of the retail hierarchy which the draft strategic plan supports and promotes.
In my opinion then Maroochydore Market Place does not constitute a district centre
in terms of the draft strategic plan and the development could not properly be approved
on that basis.
It will be seen that I have come to the view that the proposed development conflicts
with the strategic plan but not with the draft strategic plan. The relevance of that falls
to be considered in determining for the purposes of section 4.4(5A) whether or not
there are sufficient planning grounds to justify approving the application despite theconflict with the strategic plan.”
Finally, it is necessary to record the Planning and Environment Court’s material conclusions,
which were as follows:
“CONFLICT WITH STRATEGIC PLAN
In this case there is conflict between the proposal and the strategic plan, although not with the draft strategic plan. Pursuant to section 4.4(5A) of the Act the application must be refused if it conflicts with the strategic plan and there are not sufficient planning grounds to justify approving the application despite the conflict. The strategic plan in this case is towards the end of its life, whereas the draft strategic plan is well along the path to gazettal and may within a short time be the new strategic plan for the Maroochy Shire. The draft strategic plan identified major commercial centres within the Shire and contemplated a hierarchy of such centres but did not establish such a hierarchy. That was something for the future, and it has been done in the draft strategic plan. The concept of a retail hierarchy on the Sunshine Coast is central to the determination of this appeal and it is something with which the strategic plan does not deal. Quite apart from the strategic plan, in a general planning sense it is necessary to approach the issues in this appeal against the background of an actual or proposed hierarchy of retail centres. This is so whether or not the ultimate decision is to approve the application or to reject it. Nor does the strategic plan consider, in any detail, the evolution of the major centres. Expressions such as ‘core’ and ‘periphery’ are not to be found in the terminology of the strategic plan and there is no indication of the desirability of differing locational requirements for different developments within or in relation to the centres. In this case planning considerations in general and as incorporated in the draft strategic plan have persuaded me that the application ought to be approved. Mr. Deane, the then town planner for the respondent, considered that the development at the location proposed was unlikely to upset the regional status of Maroochydore, and that the proposed complex would work with the core area in establishing a greater regional catchment due to the range of shops available.
He identified locational demerits of the proposal as follows:
‘- poor integration of the regional retail facilities; -
lack of opportunity to integrate car parking into a central pool to help level out peaks and allow use for other functions when retail demand is low;
- traffic and transportation system having to cater for more than one
destination in vicinity of CBD;- reduction in efficiency obtainable from a compact CBD’.
The merits were:-
‘- not all traffic need enter the CBD and the length of stay in the CBD for
some shoppers may be reduced;-
the placing of this proposed development in the CBD core may introduce structures which can impact on the open/leisure character of the core area;
- residents nearby will find the centre more convenient than entering the
core area.’
He went on to observe:-
‘An important issue with respect to the Sunshine Coast is probably the high dependence on cars for transportation which has the effect of reducing the perceived problems regarding the separation between the retail core area and the proposed development. Supermarkets are not generally desirable in core areas due to the need to carry an often large quantity of groceries in this era of weekly and fortnightly shopping. Discount department stores through their mode of operation are fairly characterless buildings and not conducive to a lively CBD core area. The speciality shops within the development can bring character to a shopping centre, however, the range of shops which an operator seeks to establish in conjunction with a discount department store/supermarket complex are often directed at meeting the basic or convenience needs of the shoppers. Outlets with standard lines tend to dominate.
For the core area of the Maroochydore CBD to meet its regional needs it will incorporate higher order shopping rather than a conglomeration of discount department store/supermarket/basic line retailers. Encouragement must be given to the speciality clothing stores and those less frequently purchased items and the environment is all important if the Maroochydore CBD is going to give people an experience they do not obtain elsewhere. The core area of the Brisbane CBD, for example, does not house the discount department stores in the form in which they are found in the suburbs.
I consider that it is appropriate to accommodate the proposed development outside the core area of the CBD and subject to the consideration of traffic issues I consider that the proposed site does not have sufficient demerits to warrant refusal. To move the proposed development to a location on the edge of the core area would assist in some integration however the location selected does allow convenience to a greater number of people and will allow people to undertake a range of convenience shopping without mixing with the core area unless they desire.
In the next era of phone orders we may be relieved that the core has not been choked with basic item shopping areas. If the proposal establishes in the core area and this is found to be a mistake in the future then this would have a greater consequence than it would locating in the position proposed and this proves to be a mistake.
The continued expansion of the core area with hard commercial uses will lead to less opportunity of residential and office links with the core area.’
I accept, in general, the views expressed by Mr. Deane. The poor integration of the regional retail facilities to which he refers is a transitional matter which should be overcome as the regional centre continues to develop. In my opinion there are sufficient planning grounds to justify approving the application despite its conflict with the strategic plan.
In the result, the applicants’ appeal, No. 231 of 1994 will be allowed, subject to conditions to be agreed between the appellants and the respondent, or failing agreement to be fixed by the Court. In the meantime the appeal will be adjourned to a date to be fixed. Appeals 233, 234 and 235 of 1994 are dismissed.”
Grounds 3 and 4 (part): the “periphery” issue
It has earlier been noted that the Planning and Environment Court held that the “Maroochydore Marketplace” site was not “in” or “adjacent” to or “part of” the Maroochydore Central Business District for the purposes of the Maroochy Shire Strategic Plan and that the broadly analogous question raised
by the Draft Strategic Plan was whether the “Maroochydore Marketplace” site was “at the periphery”
of the Maroochydore Regional Centre, which encompassed, but extended “well beyond”, the Central
Business District. The Court decided that, for the latter purpose, it was unnecessary for the site to be
“immediately adjacent to, or abutting” the Regional Centre, provided that the site’s position was “still
associated with” the Regional Centre. It said: “In a fairly loose sense the phrase [at the periphery of the
Regional Centre] may be equivalent to ‘on the outskirts of the centre’ and the distance involved from
the boundary of the centre may be a function of the size of the centre.” The Court went on to accept,
“[i]n general”, the opinion of a Maroochy planner, Mr Deane, “that from a regional perspective,
Maroochydore Market Place can be considered to be at the periphery of the regional centre, although
it is 500 to 700 metres away from retail development in the centre.”
In my opinion, Mr Deane’s view was inadmissible: see, e.g., H.A. Bachrach Pty. Ltd. v.
Caboolture Shire Council (1992) 80 LGERA 230. Further, it seems to me questionable whether it is
a useful test concerning whether a site is “at the periphery” of an area to ask whether the site and the
area are “associated”; the question whether the site is “on the outskirts of” the area might be more
helpful, although a better test, in my opinion, is whether the “Maroochydore Marketplace” site is on or
closely proximate to the outer boundaries of the Maroochydore Regional Centre: see the definition of
“periphery” in The Australian Concise Oxford Dictionary.
Eventually, the Planning and Environment Court went further than I have so far indicated, and held that
the Maroochy Shire did not require but only “encouraged” the establishment of a development such as
“Maroochydore Marketplace” “at the periphery” of the Maroochydore Regional Centre, so that “even if the proposed development should be seen as a little more remote than ‘at the periphery’ this does not
necessarily produce any inconsistency with the draft strategic plan.” While the language of the Draft
Strategic Plan might admit of some flexibility on the “periphery” issue, I do not agree that its provisions
concerning the locations where particular developments are to be “encouraged” are not departed from
if such a development is approved on a site some distance from the nominated location. To my mind,
that occurred in this instance, as becomes more obvious when regard is had to the Draft Strategic Plan
context, which explains why different locations were chosen for different types of development. I will
refer to this again below.
In any event, the Planning and Environment Court did not consider the “Maroochydore
Marketplace” site by reference to the existing outer boundaries of the Maroochydore Regional Centre
but by reference to where those boundaries “may reasonably be in five or ten years’ time”; the reason
given by the Court for that approach was that the Regional Centre identified by the Draft Strategic Plan
should be viewed “in a dynamic rather than in a static way.” I am unable to accept the Planning and
Environment Court’s view on this matter. The mobile “periphery” which commended itself to the
Planning and Environment Court reduced the planning significance of the material provisions of the Draft
Strategic Plan. Instead of either the current outer boundaries of the existing Maroochydore Regional
Centre, or, at worst for Yu Feng, the outer boundaries of the regional centre at the time when the
“Maroochydore Marketplace” application was made to Maroochy (if different), being brought into
consideration as a factor against approval of the application because the site to which it related lay
outside the “periphery”, the Planning and Environment Court’s approach provided for an elastic
“periphery” which stretched to accommodate the application. Subject to a limitation on the maximum
permissible distance between the site of a planning application and the outer boundaries of the regional centre which were current when the application was made, the result of such an approach would be
that no application would ever be beyond the “periphery”, which would constantly expand as needed.
In my opinion, that is inconsistent with the purpose of planning and the intended effect of the Maroochy
Shire Draft Strategic Plan. Indeed, the latter portion of the final paragraph quoted above in relation to
the “periphery” issue exhibits a misunderstanding of the “Coty principle”, which is discussed below.
Finally, the “periphery” adopted by the Planning and Environment Court in order to
accommodate the “Maroochydore Marketplace” application was entirely speculative. The Court could
say no more than that, although outside both the current Maroochydore Central Business District (the
“core”) and the Maroochydore Regional Centre (the “frame”) and separated from them by the
Maroochydore Primary School, “it is not unlikely that retail and commercial development will extend
in a generally westerly direction towards the site of the development in the next 5 to 10 years. In my
opinion it is as likely that development will occur in this direction as in any other, and in fact the evidence
discloses commercial development in that direction. It makes in my view little difference to the question,
but it may be that that development will include the land presently occupied by the primary school. Even
if it does not, educational establishments are a consent use in both the Central Business and Commercial
zones. The development of Plaza Parade and the Evans Street link which borders on the subject land
and links up with Duporth Avenue provides, in my view, some encouragement for expansion of the
regional centre in that direction.” At another point, the Planning and Environment Court made the
general observation, which adds little for present purposes, that Maroochy Shire “is experiencing
considerable growth and the Council expects that growth to continue throughout the life of the draft strategic plan. Whatever point may be thought to mark the periphery of the regional centre at the
moment, such as the edge of commercial development surrounding the core, it is highly likely that that
periphery will move outwards during the life of the draft plan. If development occurred at the present
periphery of the regional centre then the likelihood is that within a few years that development would
find itself within, and not at, the periphery of the regional centre, and the intentions and objectives of the
Council in that respect would be frustrated. In considering what is intended by the term ‘periphery’ in
this context, it seems to me to be essential to take a forward view and to consider not what the
periphery might presently be thought to be, but where it may reasonably be thought to be within the next
(say) 10 years. Planning for the benefit of the public, if it is thought to require that some uses be
established at the periphery of an area, requires that the matter be looked at in a reasonably long term
timeframe.” One obvious problem with this reasoning is that it provides an argument against approval
of “Maroochydore Marketplace” unless the “periphery” of the Maroochydore Regional Centre extends
during the “life” of the Draft Strategic Plan to, or almost to, the “Maroochydore Marketplace” site but
no further.
Elfband and Vanhoff relied on statements in the Maroochy Shire Draft Strategic Plan that it
“provides the direction for the overall development of the Shire” and “a long term view must be taken
in formulating this document, having regard to the immediate needs and aspirations of the community
but within the context of maintaining the potential to meet the needs and aspirations of future
generations.” However, those statements do not assist the respondents; they indicate that Maroochy’s
planning intentions concerning the future have been included in the Draft Strategic Plan, and are to be
ascertained by the application of its provisions to the locations which it describes as they presently exist, not as they might or might not come to exist at some future time if the Draft Strategic Plan were not
implemented.
Yu Feng submitted that the Planning and Environment Court’s mistake with respect to the
“periphery” referred to in the Maroochy Shire Draft Strategic Plan led the Court to its conclusion that
the site of the proposed “Maroochydore Marketplace” development was at the “periphery” of the
Maroochydore Regional Centre and was a mistake or error in law. On the basis that that was so, it was
further submitted by Yu Feng that that conclusion led to another error of principle, which, as I
understand the argument, was said to be a principle of both town planning and town planning law. The
argument, which was based on Coty (England) Pty. Ltd. v. Sydney City Council (1957) 2 LGRA 117,
was that, in deciding whether there were “sufficient planning grounds to justify approving the
[‘Maroochydore Marketplace’] application despite [its] conflict” with the Maroochy Shire Strategic
Plan, the Planning and Environment Court was obliged to give effect to the Maroochy Shire Draft
Strategic Plan, whereas it had done the opposite; because of its mistake in relation to the periphery of
the Maroochydore Regional Centre according to the Draft Strategic Plan, the Court wrongly concluded
that the application was consistent with the Draft Strategic Plan, whereas the two were inconsistent.
Yu Feng’s submissions raise two questions of general importance. The first is whether a mistake
concerning a Draft Strategic Plan is a mistake or error in law. The second is whether the “Coty
principle” obliges the refusal of an application which is inconsistent with a Draft Strategic Plan. It is
convenient to deal with the latter of these questions at this point.
The “Coty principle”
Yu Feng’s submission with respect to the “Coty principle” is plainly incorrect; it is not supported
by the authorities,2 and is in direct conflict with at least two decisions of this Court.[3] Coty establishes
[3] Lewiac; Mount Marrow Blue Metal Quarries.
no more than that, when determining whether to approve or refuse a planning application, it is
permissible, in appropriate cases, to take account of any provisions affecting the site which are included
in a general planning scheme which is in the course of preparation; the weight to be accorded to either
consistency or inconsistency between the draft planning scheme and the application will depend on the
circumstances, including the stage to which the draft planning scheme has progressed, and usually will
be only one of the factors to be considered, although in a particular case it might be decisive.[4]
[4] It was not submitted that the “Coty principle” is only material to a planning application which the local authority has refused or proposes to refuse, and has no relevance if the local authority has approved, or proposes to approve the planning application.
Theoretically, it would be open to a local authority and, provided that it had available and accepted
appropriate evidence, to the Planning and Environment Court, to conclude that there were “sufficient
planning grounds to justify approving [an] application despite [its] conflict” with a Strategic Plan and a
Draft Strategic Plan. However, such a decision might reasonably be expected to occur infrequently,
especially when a Draft Strategic Plan “has progressed a substantial distance along the statutory path
to gazettal;” an approval of a major development in such circumstances by either local authority or
Planning
and Environment Court would frustrate, and tend to diminish public confidence in, the planning process.
Before discussion of the consequences of the Planning and Environment Court’s mistakes with
respect to the “periphery” issue, it is convenient to discuss Yu Feng’s other grounds of appeal.
Grounds 1, 4 (balance) and 5:
The “periphery” issue arose because the Planning and Environment Court concluded that
“Maroochydore Marketplace” fell within the description “retail warehousing and other retail and
commercial development which requires large display areas and tends to rely on accessibility by private
transport” in the Draft Strategic Plan; if the conclusion that “Maroochydore Marketplace” met that
description was correct, the Draft Strategic Plan “encouraged” its establishment “at the periphery” of
the Maroochydore Regional Centre. Conversely, the Planning and Environment Court held that
“Maroochydore Marketplace” did not provide for “higher order retailing, including national department
stores,” which the Draft Strategic Plan “encouraged in the core area” of the Regional Centre, i.e. in the
Maroochydore Central Business District. Both those matters are connected to the assertion made by
ground 5 of Yu Feng’s appeal that approval of “Maroochydore Marketplace” “is contrary to Objective
4.1 of the draft Strategic Plan in that it does not consolidate and encourage the growth and development
of the retail/commercial centre hierarchy. Furthermore, the proposed development is contrary to the
introductory words of Objective 4.1". Those words, already set out above, were as follows: “Encouragement of a retail and commercial hierarchy protects the investments made in existing centres and promotes private and public sector confidence in, and public knowledge of, the Council’s continuing commitment to that investment. It also provides a basis for containing the growth and function of centres, limiting their spread into the residential areas in which they play a fundamental role and facilitating the concentration of certain uses in highly accessible and appropriately serviced areas.”
After concluding, correctly, that “the regional centre extends beyond the core”, the Planning and
Environment Court said (in a passage already quoted) that the Draft Strategic Plan “must be understood
in the sense that the periphery of the [regional] centre will be some distance from the periphery of the
core” and that:
“... Higher order retailing, including national department stores, are encouraged under the plan to establish in the core area. ... It is intended that the core area should remain compact to enable patrons to walk between its component parts and that there be pedestrian access between retail and commercial facilities. Retail warehousing and other retail and commercial development requiring large display areas and tending to reply on accessibility by private transport on the other hand are encouraged to establish at the periphery of the centre. ... The development proposed in this case is a development of a stand-alone shopping complex comprising a major supermarket, a discount department store, a mini-major department store and a range of specialty shops with provision for ground level parking. It seems to me to be tolerably clear that such a development is one which requires large display areas, in so far as it includes a major supermarket and a discount department store and it certainly is a development of the sort which tends to rely upon accessibility by private transport. It seems to me to follow that Maroochydore Marketplace, if it were to be established as part of the regional centre, should be established at the periphery of that centre. I consider that the reference to ‘higher order retailing including national department stores’ is not intended to include a development which is based on a major supermarket and a discount department store. I would think that the expression in its context is a reference to speciality shops and a major department store or stores where high level comparison shopping tends to be carried out. No doubt comparison shopping would occur at an establishment such as Maroochydore Marketplace, but in my view it would be of a lower order and would not properly be characterised as ‘higher order retailing’, as that expression is used with reference to the Regional Centre. ...
The requirement of compactness relates to the core area, and the required provision of pedestrian accessways providing direct links between retail and commercial facilities, carparking areas and other commercial sites appears to me also to relate to the core area. Such considerations are of less moment in relation to a facility such as Maroochydore Marketplace located on the periphery of the regional centre and accessed principally by private transport.
These considerations, referred to in the strategy for the regional centre, are reinforced in the implementation criteria in which emphasis is given to the importance of a continuous retail shop front at street level in the retail and commercial core and to pedestrian accessibility between premises in that core. Those considerations point, again, to the appropriateness of locating a facility such as Maroochydore Marketplace, not in the core and not even at the periphery of the core, but at the periphery of the centre.”
While the concepts referred to in the Maroochy Shire Draft Strategic Plan, such as “higher
order retailing”, “retail ... development requiring large display areas”, “retail ... development tending to
rely on accessibility by public transport” and, to a lesser extent perhaps, “retail warehousing” are
imprecise and readily intersect and overlap, the passage last quoted from the Judge of the Planning and
Environment Court seems to me merely a series of circuitous assertions. As later appears, the opinions
which the Court expressed are again apparently based on the views of Mr Deane. Towards the very
end of its judgment, the Court said that it accepted, “in general” the following evidence of Mr Deane:
“Mr. Deane, the then town planner for the respondent, considered that the development at the location proposed was unlikely to upset the regional status of Maroochydore, and that the proposed complex would work with the core area in establishing a greater regional catchment due to the range of shops available.
He identified locational demerits of the proposal as follows:
‘- poor integration of the regional retail facilities; -
lack of opportunity to integrate car parking into a central pool to help level out peaks and allow use for other functions when retail demand is low;
- traffic and transportation system having to cater for more than
one destination in vicinity of CBD;- reduction in efficiency obtainable from a compact CBD’.
The merits were:-
‘- not all traffic need enter the CBD and the length of stay in the
CBD for some shoppers may be reduced;-
the placing of this proposed development in the CBD core may introduce structures which can impact on the open/leisure character of the core area;
- residents nearby will find the centre more convenient than
entering the core area.’
He went on to observe:-
‘An important issue with respect to the Sunshine Coast is probably the high dependence on cars for transportation which has the effect of reducing the perceived problems regarding the separation between the retail core area and the proposed development. Supermarkets are not generally desirable in core areas due to the need to carry an often large quantity of groceries in this era of weekly and fortnightly shopping. Discount department stores through their mode of operation are fairly characterless buildings and not conducive to a lively CBD core area. The speciality shops within the development can bring character to a shopping centre, however, the range of shops which an operator seeks to establish in conjunction with a discount department store/supermarket complex are often directed at meeting the basic or convenience needs of the shoppers. Outlets with standard lines tend to dominate.
it would not have necessarily required that, irrespective of all other town-planning factors, the
application be refused. The question therefore remains whether Yu Feng’s appeals to the Planning and
Environment Court should be sent back to that Court or whether those appeals should be allowed and
an order made that the “Maroochydore Marketplace” application be refused.
In my opinion, the latter is the correct course. The Planning and Environment Court specifically
held that “Maroochydore Marketplace” was located “at the periphery of”, and thus “part of” the
Maroochydore Regional Centre, and for that reason consolidated, not fragmented, that Regional Centre. The Court’s legal mistakes were central to those conclusions. The Court also held that it would
be “contrary to good town planning principle” to approve “Maroochydore Marketplace” if “its effect
would be to fragment the town centre rather than to consolidate it”. On a proper construction of the
Draft Strategic Plan, the proposed site was outside the “periphery”, and construction of “Maroochydore
Marketplace” would have a fragmenting, not a consolidating, effect. There is no scope, in these
circumstances, for the Planning and Environment Court to approve the “Maroochydore Marketplace”
application.
Yu Feng’s appeal to this Court and its Appeal Nos. 233 and 234 of 1994 to the Planning and
Environment Court should be allowed and the orders made below in those Planning and Environment
Court appeals set aside. It should further be ordered that the “Maroochydore Marketplace” application
be refused and that Elfband, Vanhoff and Maroochydore pay Yu Feng’s taxed costs of its appeal to
this Court.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 10/07/1996
I have read the reasons of the President in which the facts, issues and relevant parts of the
planning documents are fully set out; the nature of his Honour’s reasons makes it possible for mine to
be relatively concise. In particular, I shall not repeat the quotations from the planning documents which
are to be found in the President’s reasons. I shall assume that the reader has studied them.
The desire of the second respondents ("Elfband and Vanhoff") is to build a large shopping
complex ("Maroochydore Marketplace") fairly close to the existing large shopping complexes in the
business centre of Maroochydore. The distance between the proposed new complex and the existing
complexes is such that one would expect that people shopping at both would ordinarily drive rather than
walk between the two.
It will become clear that I have found difficulty with the path by which the learned primary judge
came to his conclusions that the proposed development would be inconsistent with the intention of the
existing strategic plan discussed in the reasons but consistent with that of the draft strategic plan; these
documents are, it should be said, not so expressed as to be easy to apply and I confess to some
sympathy for those who have the task of applying them.
It is clear from the judge’s findings, and as a matter of commonsense, that the new complex
would provide substantial competition for the existing group of complexes. The judge found in his
comprehensive analysis of the case that the new centre would be a major retail facility; it is intended to comprise principally a large supermarket, a large discount department store and numerous speciality
shops, and it will provide shoppers with an additional choice as to most of the types of goods they are
likely to want to buy, i.e. people who might have gone to the existing complexes to buy particular sorts
of goods may buy them at the new complex instead. The judge referred to evidence that 30 per cent
or 33 per cent of the sales of the new complex were expected to be gained from the Sunshine Plaza,
one of the existing complexes in the business centre. The circumstance that the proposed new complex
will be competition for the existing complexes is not a ground on which the appeal is brought, nor one
on which it could have been brought. Nevertheless, the point is one which it is important to keep in
mind when considering the basis on which the judge justified his view which was, in substance, that to
allow the new complex would conflict with the provisions of the existing strategic plan but be in
conformity with the draft strategic plan; the plans stressed preservation of the "existing retail hierarchy".
The former view, as to conflict with the existing plan, is not now questioned. The main issues in the
case are whether the judge was right in reading the draft strategic plan as contemplating such a proposal
as his Honour had before him and if his Honour was wrong, whether his error was one of law.
Bereft of any embellishment, the judge’s conclusion was that the draft strategic plan
contemplated the establishment of a shopping complex of the type in question, in such an area as that
in which it was to be established; I must respectfully say that if that was in fact intended by the persons
who produced the draft strategic plan, their intention has been artfully concealed.
It is convenient to begin by explaining the judge’s view of the proposal, considered in relation to the existing strategic plan. His Honour said that that plan did not contemplate such a facility as was proposed "as constituting a major commercial centre in itself", and that it certainly did not contemplate
a major commercial centre "cheek by jowl with the Maroochydore Town Centre". His Honour also
said:
"It is development on a scale appropriate for a major commercial centre and in my view could only be consistent with the strategic plan if it can be seen as part of the major commercial centre at Maroochydore". (emphasis added)
His Honour went on to hold, in effect, that because of the distance (500 to 700 metres) of the new
complex from the edge of the present central shopping and business areas of Maroochydore he could
not describe it as development "upon" the existing areas nor one "on or adjacent to" them.
It will be noticed that there is some apparent inconsistency in these observations; his Honour
seems to have regarded it as an objection to the new complex that it was "cheek by jowl" with what
existed, but in the end it was the substantial distance between the proposed complex and the existing
business areas which convinced his Honour that the existing strategic plan did not contemplate the
establishment of such a complex. But as I have said, his Honour’s conclusion that the proposal did not
accord with the existing strategic plan is not challenged.
Turning then to the draft strategic plan, his Honour set out and explained its principal provisions
in passages which are not, I think, contentious, and then added:
"The substantial question is whether and in what way development of Maroochydore Marketplace can be justified in terms of the apparent objective in section 4 of the draft strategic plan to support and develop the existing retail hierarchy".
The question thus posed was not, I think, explicitly answered in any later part of the reasons. But his
Honour made observations which bear upon the problem of whether the new complex would "support and develop" the existing facilities. He held that the new complex would not be appropriately situated
"where it is proposed to be situated if it is to be seen as a subregional centre in its own right". His
Honour also said that "viewed as a centre distinct from, and therefore competing with the
Maroochydore Town Centre, its development on the site proposed would be [unacceptable] . . . in that
its effect would be to fragment the town centre rather than to consolidate it, and good planning principles
seem to me to require that the regional centre be consolidated rather than fragmented. If therefore
Maroochydore Marketplace is to be regarded as a centre in its own right and not as part of a larger
centre I do not think its development is justified . . . " (emphasis added). Since the judge held that the
proposal should be accepted, he must have decided this issue in favour of Elfband and Vanhoff. By
implication, although not expressly, his Honour here advanced the view that the purpose he identified
in the draft strategic plan, namely "to support and develop" the existing facility, was fulfilled if the new
complex was not to be one "distinct from" but rather "part of" what existed. Putting this in simpler
language, in this part of his reasons the judge seems to have held that the new complex would become
part of the existing shopping facilities and would in that sense consolidate them. Elsewhere in his
Honour’s reasons, one finds the same idea: " . . . unless the proposed facility can properly be viewed
as part of the regional centre then its presence so close to the regional centre . . . cannot be regarded
as a systematic development . . . It is development . . . which is contrary to the structure of the retail
hierarchy which the draft strategic plan supports and promotes" (emphasis added).
I must say that the contrast between this reasoning and that which was used in holding that the
proposal did not conform to the existing strategic plan is striking. When dealing with the existing plan,
his Honour said as I have mentioned that there could only be consistency if the new complex "can be seen as part of the major commercial centre at Maroochydore". His Honour has plainly rejected that
proposition. When dealing with the draft plan, the judge returned to the same theme and held that,
viewed as a centre "distinct from", rather than "part of" the existing facilities, the new complex could not
conform to the draft plan. Taking the view, when considering the draft plan, that the new complex
would be part of what already existed, his Honour held that it conformed to the draft plan. I have found
difficulty in following this reasoning.
But it is as a possible answer to the seeming inconsistency to which I have referred that what
might conveniently be called the "periphery point" becomes important. Mr Gibson Q.C., who appeared
for Elfband and Vanhoff, contended in effect that any errors in construction of the draft plan which were,
according to the appellant’s argument, to be found in the judge’s reasons, were, if they existed, not of
central importance. My view is that the "periphery point" played a large part in convincing the judge that
the new complex could be classified as not being a "subregional centre in its own right", not being
"distinct" from the existing facilities but one which "consolidated rather than fragmented" them. His
Honour said that if the new complex "were to be established as part of the regional centre, [it] should
be established at the periphery of that centre".
The way in which the matter was approached was as follows. His Honour held, as a matter of
construction of the draft plan, that it contemplated the establishment of just such a complex as was
proposed at the periphery of the "regional centre". His Honour’s primary view was not that the location
of the new complex presently fulfilled that description; he said in effect that in due time the centre would
perhaps spread out so that the new complex would be on its periphery. Mr Gore Q.C. argued for the
appellant that this reasoning involved an error in the construction of the draft plan. The critical
expression in the draft plan is the following:
"Retail warehousing and other retail and commercial development which requires large display areas and tends to rely on accessibility by private transport are encouraged to establish at the periphery of the centre".
The judge held that the proposed complex was one of the kind contemplated in this passage, as it
required large display areas and relied on private transport. This view was challenged by the appellant.
We were urged to apply commonsense to the construction of loosely drawn provisions of this
type and not to read them too narrowly. As to the first point, the requirement of large display areas,
any big shop whatever its character has a large display area, unless the proprietor adopts the unusual
marketing stratagem of not displaying the goods for sale. It is unlikely that in speaking of development
which requires large display areas, the drafter had in mind simply big shops. As Mr Gore pointed out,
the reference to "retail warehousing" at the beginning of this part of the draft plan throws light upon the
rest. The term "warehousing" has no very precise meaning in this context. But it strengthens the idea,
particularly when coupled with the reference to accessibility by private transport, that the drafter was
thinking not merely of any big shop, but of one in which the nature of the business conducted - selling
big electrical appliances is an example - is such that a large floor area is necessary, if the vendor is to
be able to display a suitable range of goods. Similarly, the reference to accessibility by private transport
can hardly mean simply that the development is one which customers may conveniently drive to: that
is true of practically all new major shopping complexes, other than those in the centre of cities. The
implication is rather that the goods sold are such that it is likely to be especially important for the
customers’ vehicles to have good access to the shop. Again, the sale of large electrical appliances
comes to mind, as does the comprehensively-stocked hardware and building materials shop. The judge dealt with this question rather briefly. His Honour said:
"It seems to me to be tolerably clear that such a development [as was proposed] is one which requires large display areas, in so far as it includes a major supermarket and a discount department store and it certainly is a development of the sort which tends to rely upon accessibility by private transport".
It was the size of what was proposed, not the nature of the goods sold or the method of selling
them, which, as I understand the reasons, induced his Honour to conclude that the new complex was
one which required large display areas; as for accessibility by private transport being relied on,
presumably his Honour had a similar line of reasoning in mind: the proposed car park is a large one,
on one level. The consequence is, as it seems to me, that his Honour has read the part of the draft plan
which I have quoted as laying down criteria which could be satisfied by any developer who proposed
a large shopping complex with a large ground-floor car park.
I am conscious of the fact that there are provisions of the draft plan which bear upon the
questions just discussed and which I have not quoted. Some of the expressions used are remarkably
vague, even for a document intended to prescribe a general planning strategy. But I can find nothing
in the other passages to support the proposition which the judgment below appears to embrace: that
the intention of the draft plan was to encourage the construction of large shopping complexes with big
parking areas in any location which might, over a reasonable span of years, come to be on the periphery
of the town business and commercial centre.
It is my opinion that what I have described as the critical expression in the draft plan is not one which, on the facts as stated in the judge’s reasons, has application to the proposed complex; therefore, it does not matter whether or not his Honour was right in holding that the proposed complex could be
said to be one to be established at the periphery of the regional centre. But I should add that I cannot
accept that his Honour’s construction of the notion of "at the periphery" can possibly be right. The
principal line of reasoning in that connection was that if the draft plan became law, then during its lifetime
the existing commercial centre would probably expand and it might well expand in such a direction as
to reach the new complex; his Honour even speculated that perhaps a school, lying between the existing
complexes and the site proposed, might be closed and its site commercially developed.
This is to read the expression "at the periphery" as equivalent to "possibly at the periphery in the
future", which it cannot possibly mean. Another suggestion to be found in the reasons was that the
locational criterion was satisfied because of expert evidence which was given as to the meaning of the
word "periphery" in this context. It was not suggested that the word has any technical meaning and the
evidence was plainly inadmissible. One could understand that in approaching the draft plan one might
read the expression "at the periphery" broadly rather than pedantically, so as to encompass a case in
which the gap between the existing centre and the proposed complex was not very significant; but this
is not such a case. As I have pointed out, it was the magnitude of that gap which induced the primary
judge to hold that there was a conflict with the intention of the existing strategic plan which his Honour
held to be that the new development should be "on or adjacent to" what existed.
To summarise and recapitulate the principal conclusions expressed above:
1. I find it hard to accept the notion that the new complex could properly be held to be inconsistent
with the strategic plan because not part of the existing commercial centre, but consistent with the draft
plan because it should be viewed as part of that centre.
2. The passage in the draft plan primarily relied on to justify a conclusion that the new complex
would be consistent with that plan does not, properly construed, apply to the complex at all.
3. If it did so apply, then the judge was wrong in holding that the complex would be at the
periphery of the existing regional centre.
I can find no substance in the argument advanced on behalf of the respondents that his Honour’s
view about conformity with the draft plan did not necessarily affect his ultimate conclusion. It seems to
me clear that the judge regarded the point as one of real moment; I return to this aspect at the
conclusion of these reasons.
The appeal cannot be allowed, however, unless what I have held to be errors in the application
of the plan are, properly speaking, errors of law. In my respectful opinion, the effect of some of the
principal authorities dealing with the distinction between errors of law and those of fact, as bearing upon
jurisdiction to hear an appeal on a question of law, is helpfully summarised in the reasons of the full
Federal Court in Collector of Customs v. Pozzolanic Enterprises Pty Ltd (1993) 115 A.L.R. 1 at 9.
I set out those of the five propositions to be found at that page which have most present relevance:
2. The ordinary meaning of a word or its non-legal technical meaning is a question
of fact. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether the facts fully found fall within the provision of a statutory
enactment properly construed is generally a question of law.
It is my opinion that, here, none of the relevant expressions is intended to have other than its ordinary
meaning, so that prima facie rule 2 applies. Rule 4, the leading authority for which is the judgment of
Isaacs J. in Life Insurance Co. of Australia Ltd v. Phillips (1925) 36 C.L.R. 60 at 79, is one which it
would seem imprudent to rely on. The authority on which Isaacs J. principally relies, Di Sora v.
Phillipps (1863) 10 H.L.C. 624 at 638, 639, has to do with the interpretation of instruments in a foreign
language; if there is, in that context, a useful distinction between the establishment of the interpretation
of a document on the one hand and its construction on the other, it is not a distinction whose application
to determining the effect of documents in the English language has ever been elucidated.
That leaves rule 5, whose correctness is somewhat doubtful; it will be noted that in Hope v.
Bathurst City Council (1980) 144 C.L.R. 1 at 7, Mason J. states the rule and gives authority for it, but
goes on:
"However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words."
The passages which follow, and in particular the reference with apparent approval to the judgment of
Kitto J. in N.S.W. Associated Blue-Metal Quarries Ltd v. Federal Commissioner of Taxation (1956)
94 C.L.R. 509 at 512, appear to accept that what I have called rule 5 is inapplicable to expressions
used in their ordinary sense; this is explained in the Federal Court’s reasons in the Pozzolanic case, at
pp. 9 and 10. Having regard to the discussion at those pages, rule 5 should perhaps be reframed:
"The question whether facts fully found fall within the provision of a statutory enactment properly construed is not a question of law, where the words to be construed are used according to their common understanding; but whether the material reasonably admits of different conclusions as to whether the facts fall within the ordinary meaning is a question of law."
On this basis it appears to me that the errors in construction of the draft plan, which in my opinion
underlay the learned primary judge’s conclusions with respect to that draft, involved legal mistakes, not
merely factual ones; it does not appear that the expressions his Honour had to apply were reasonably
capable of the application given to them. Further, I am in agreement with the conclusion of the President
that the circumstance that at the relevant time the provisions in question had not been given statutory
effect does not make any error in their construction necessarily a factual one; the Coty principle which,
as the primary judge rightly thought, made the draft plan relevant, gave the provisions his Honour was
construing certain consequences in law.
Orders to be made
This Court’s jurisdiction is given, as to the present case, by s. 7.4(3) of the Local Government
(Planning and Environment) Act 1990 which does not specify what powers the Court has in
disposing of such an appeal. I have noted that the President has adopted the view that errors which his
Honour held that the court below had made were central to its conclusion that relevant parts of the draft
plan were satisfied; I respectfully agree. It was contended for the respondents that even if the view
were taken that the judge was wrong in treating provisions of the draft plan as supporting acceptance
of the application, the appeal should be dismissed because there was another ground of decision,
namely, that there were planning grounds justifying approval of the application. This contention appears
to me plainly wrong; it is impossible to conclude, and there is nothing in the reasons to support the view
that the primary judge would necessarily have reached the same ultimate conclusion had he not found
the application to be consistent with the draft plan. The real question, which I have found to be one of some difficulty, is whether this Court should exercise the power (which I shall assume the statute intends
us to have) of remitting the case to be further considered by the primary judge, rather than simply
allowing the appeal and setting aside the orders made below.
It is true that, as was pointed out by counsel for the respondents, the primary judge included
in his reasons an elaborate analysis and discussion of issues raised other than those discussed above,
and in particular the economic impact the new complex was likely to have. In this sense it is true that
there were substantial reasons given for the orders his Honour made, apart from those as to which I
have expressed my view above. But the reasons read as a whole appear to me to depend critically
upon the opinion his Honour arrived at with respect to the draft strategic plan; his Honour indicated that
unless the new complex was held to be in some sense "part of" the existing centre it could not properly
be allowed to be established. What saved the application from that fate, according to my reading of
the reasons, was his Honour’s conclusion that the draft plan in express terms encouraged such a
development as was proposed. In these circumstances it does not seem to me right to remit the case
to see if another path to success for the application can be found. I would therefore allow the appeal,
set aside the orders made below in Planning & Environment Appeals Nos. 233 and 234 of 1994, and
in lieu order that those Planning & Environment appeals be allowed and that the application by the
respondents Elfband Pty Ltd and Vanhoff Pty Ltd to the Maroochy Shire Council for rezoning and town
planning consent be refused. I would further order that the respondents pay the appellant’s costs in the
proceedings in this Court to be taxed.
REASONS FOR JUDGMENT - MACKENZIE J
Judgment delivered 10 July 1996
This is an appeal from judgments of the Planning & Environment Court in connection with a
proposed development called Maroochydore Marketplace. The appellant is the owner of an existing
shopping centre in Maroochydore and it had objected to the applications by the second respondents
for rezoning and town planning consent to the proposed development.
The grounds of appeal are set out in the reasons for judgment of the President, which I have had
the opportunity to read in draft form. The reasons for judgment of the President also set out relevant
passages of the judgment of the judge below and a number of propositions of fact which can be distilled
from those reasons. The exhaustive nature of the quotations and analysis by the President makes it
unnecessary for me to repeat them for the purposes of my reasons.
The applications by the respondents required consideration of the town planning scheme for the
Maroochy Shire, which included a Strategic Plan, which was in force, and a Draft Strategic Plan which
had been advertised shortly prior to the making of the favourable decision of the first respondent upon
the second respondents' application. In accordance with the principle in Coty (England) Pty Ltd v.
Sydney City Council (1957) 2 LG ERA 117 it was permissible to have regard to the draft strategic plan
which was not yet operative but which had progressed to the point of being advertised. Some of the
difficulty in the case is the result of the ambiguous nature of the language used in these documents. No
doubt that is a result of the nature of the documents as Strategic Plans which must of necessity be
relatively general rather than more detailed and precise documents. Nevertheless it is a significant
element in the appeal that an appreciation of what was intended by the documents be gained for the
purpose of testing the reasoning in the judgment below. The underlying issue, stripped to its essentials,
is the conflict between the proposal and the existing Plan and the view that approval of the proposal would be in conformity with the Draft Strategic Plan. After reviewing the operative Strategic Plan the
judge below noted that Maroochydore Marketplace would be separated by upwards of 500 metres
from the edge of the present town centre (in the sense of the shopping and business areas) of
Maroochydore. He found that the development was not "upon" that shopping and business area and
that it therefore conflicted with the aims and objectives of the operative Strategic Plan.
He then considered the Draft Strategic Plan which had a "retail and commercial strategy" which
referred to categories of "regional centre", "sub-regional centre", "district centre" and "neighbourhood
and local centres". The judge below said,
"The substantial question is whether and in what way the development of Maroochydore Marketplace can be justified in terms of the apparent objective . . . of the Draft Strategic Plan to support and develop the existing retail hierarchy."
The judgment proceeded to discuss the "core" of the regional centre and a necessary implication that
the regional centre extended beyond the core. The intention that the core area should remain compact
to enable patrons to walk between its component parts and that there be pedestrian access between
retail and commercial facilities was noted. The provision that "retail warehousing and other retail and
commercial development which requires large display areas and tends to rely on accessibility by private
transport are encouraged to establish at the periphery of the centre" assumed considerable importance
in the ensuing discussion in the judgment. It is in my view correct that a sensible practical approach must
be made to the consideration of general phrases of the kind quoted in a document which must of
necessity be drawn in fairly general terms. However even applying that approach I have some difficulty
in the context in construing the provision as applying to a shopping complex of the kind contemplated.
The initial emphasis on "retail warehousing" colours what follows and it is difficult, in my view, to read
the provision as contemplating the kind of shopping complex envisaged by the proposal. The way in which the judge below formulated his reasons for thinking that the proposed complex fitted the
description quoted relies on the matters of large display areas and reliance on accessibility by private
transport. The view formed by the judge below on this issue was a significant factor in his finding that
"encouragement" to establish such developments at the "periphery of the centre" enabled the proposal
to claim conformity with the draft strategic plan.
The concept of "at the periphery" of a location was referred to in some detail in the judgment
below and in submissions before us.
The word "periphery" bears its ordinary meaning. Therefore the question whether something is
"at the periphery" of an area involves a value-judgment that the location is at least closely proximate to
the outer boundaries of the area. It is a matter which must be approached in a practical common sense
way. It is also true that what may be regarded at any given time as being at the periphery of an area
may cease to fit that description because it has coalesced with the area itself as time progresses. The
approach which appears to have been taken in the Planning and Environment Court is that the periphery
has a degree of elasticity which requires a prediction to be made about where the periphery may be by
the end of a Strategic Plan's life, enabling a decision to be made that a location is at the periphery at the
time of application or approval. In one sense, to approach the matter on that basis would be to
increase the likelihood of a self-fulfilling prophecy. To extend the notion of the periphery to enable a
development to be built on land which might ordinarily be thought to be beyond the existing periphery
would tend to encourage the trend to locate developments in the area between existing development
and the approved development rather than in another direction. While accepting the force of the
proposition that some effort must be made to ensure that inappropriate developments are not built in
locations which, with the passing of time, ultimately conflict with the desired kind of development in an area it can hardly be said that in the present case the development of what is essentially a retail shopping
complex is likely to fit that description.
I am of opinion that the underlying proposition that the proposed development was at the
periphery of the centre was incorrect.
There remains the question whether that error and the error relating to the construction of the
Draft Strategic Plan with respect to the kinds of developments to be encouraged at the periphery are
errors of law. For the reasons given by the President and Pincus JA I am satisfied that they are errors
of law. So far as relief is concerned I agree with the orders proposed for the reasons given by the
President and Pincus J.A.
e.g., Trueline Investments Pty Ltd v. Parramatta City Council (1969) 19 LGRA 140;
Hepworth v. Burwood Municipal Council [1972] 1 NSWLR 268;
Hollingsworth v. Brisbane City Council (1975) Planner LGC 99;
Storey v. Director of Planning and District Council of Yankalilla (1975) 11 SASR 227;
Albury-Wodonga Development Corporation v. Fitzpatrick [1982] VR 165;
Security Projects Ltd v. Hollingsworth (1975) 62 LGRA 319;
Lewiac Pty Ltd v. Gold Coast City Council [1996] 2 QdR 266;
Mt Marrow Blue Metal Quarries Pty Ltd v. Moreton Shire Council [1996] 1 QdR 347;
cf District Council of Munno Para v. Remove-All Rubbish Co Pty Ltd (1985) 60 LGRA 1.
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