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Ballymont Pty Ltd v Ipswich City Council

 

[2002] QCA 233

Reported at [2003] 2 Qd R 461
 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Ballymont P/L & Anor v Ipswich City Council & Ors [2002] QCA 233

PARTIES:

BALLYMONT PTY LTD ACN 010 212 085
(first appellant/first appellant)
ROBERT LEWIS SIMMONS
(second appellant/second appellant)
v
IPSWICH CITY COUNCIL
(respondent/first respondent)
MARK STOCKWELL
(first co-respondent/second respondent)
STOCKWELL BUILDING AND DEVELOPMENT (a firm)
(second co-respondent/third respondent)
STATE OF QUEENSLAND
(third co-respondent/fourth respondent)

FILE NO/S:

Appeal No 6697 of 2001

P & E Appeal No 4090 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

28 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2002

JUDGES:

McMurdo P, Fryberg and Wilson JJ
Separate reasons for judgment of each member of the court, each concurring as to the orders made.

ORDERS:

  1. Appeal dismissed
  2. Appellants to pay the respondents’ costs of and incidental to the appeal, to be assessed.

CATCHWORDS:

ENVIRONMENT AND PLANNING – Development control – Consents, approvals and permits – Whether development conflicted with the relevant planning scheme – Whether judge took the relevant planning scheme criteria into account

ENVIRONMENT AND PLANNING – Development control – Consents, approvals and permits – Where application must be refused – Interpretation of Local Government (Planning and Environment) Act 1990, s 4.13(5A)

Local Government (Planning and Environment) Act 1990 (Qld), s 4.13(5), s 4.13(5A)

Zhang v Canterbury City Council (2001) 51 NSWLR 589, considered

COUNSEL:

D R Gore QC, with R S Litster, for the appellants

R N Traves for the first respondent

P J Lyons QC, with J J Haydon, for the second and third respondents

No appearance for the fourth respondent

SOLICITORS:

Stephen Goodfellow for the appellants

City Solicitor – Ipswich City Council for the first respondent

Clayton Utz for the second and third respondents

Crown Solicitor for the fourth respondent

  1. McMURDO P: I have read the draft reasons for judgment of Fryberg J and agree generally with those reasons and with the proposed orders.
  1. FRYBERG J:  This appeal has been brought by leave from a decision of Judge Quirk in the Planning and Environment Court.  The proceedings before that court resulted from the decision of the present first respondent, Ipswich City Council, (“the Council”) to approve a development application made by the present second and third respondents (“Stockwell”) in respect of a tavern proposed to be built on land (“the subject land”) fronting Warwick Road, in the suburb of Yamanto, on the southern approaches to Ipswich.  As Warwick Road is a main road, the State of Queensland wished to have conditions imposed on any approval of the application, and consequently it became a party to the proceedings in the Planning and Environment Court.  It took no part in the appeal to this Court.
  1. The appellants, Ballymont Pty Ltd, (“Ballymont”) are the owners of a shopping complex called the Yamanto Seven-Day Centre. That complex contains a new tavern known as Yamanto Tavern. It is part of a shopping centre (whose major tenant is Woolworths) located on Warwick Road near its intersection with the Cunningham Highway, approximately 1.25km south-west of the subject land.
  1. The leave to appeal is limited to alleged errors of law.

The planning scheme

  1. The planning scheme for the City of Ipswich was originally prepared in 1990, but it was reviewed and updated in 1999 to take account of the amalgamation of the former Ipswich City Council and the Moreton Shire Council, and the enactment of the Integrated Planning Act 1997.  The scheme is a “transitional planning scheme” under ch 6 of that Act and, therefore, it has the force of law.[1]  It consists of three main elements: the strategic plan; planning scheme provisions, including zoning maps; and structure plans.  To date, structure plans have not been made for all of the city.  The planning scheme provides:

“IMPLEMENTATION OF THE PLANNING SCHEME

The Planning Scheme will be implemented via two (2) processes.  The first process relates to those areas of the City not subject to a Structure Plan...”

 

Process 1 (area not covered by structure plans)

 

... all development carried out after the appointed day (being the date this planning scheme came into force) must, to the Council’s satisfaction, be in accordance with the relevant provisions of:

(a)the Strategic Plan, by:

(i)being generally consistent with the principles and policies of the Plan;

(ii)satisfying the applicable planning strategies and planning statements; and

(iii)meeting the implementation criteria for each applicable objective; and

(b)the Planning Scheme provisions, by:

(i)being in accordance with the intent and objectives and development type for the zone in which the land is situated as outlined in Part 3 ...”

  1. That provision applies to the present case; no relevant land is covered by a structure plan. Relevantly, it means (if I may sacrifice precision for brevity) that Stockwell’s proposal must satisfy the applicable planning strategies, must meet the implementation criteria for each applicable objective and must be in accordance with the intent and objectives of the commerce and trade zone.

Planning strategies

  1. Planning strategies are set out in ch 4 of the relevant planning scheme and are represented graphically by way of the preferred dominant land uses shown on the strategic plan map. Each strategy incorporates planning objectives and a number of criteria for implementing those objectives. Two are relevant in the present appeal: the urban development area strategy and the commercial and community centres strategy. The first applies to land designated urban development areas on the strategic plan map, which is most of the built-up area of the city, including the subject land. The second applies to land designated City Centre, Town Centre and District Centre, as well as to local and neighbourhood retail facilities. These centres are indicated on the plan as a number of nodes scattered throughout the built-up area. The shopping centre containing the Yamanto Seven-Day Centre constitutes a District Centre.
  1. Section 4.2 of the strategic plan states the intent of the various preferred dominant land uses.  In relation to urban development areas, item (1) states:

“The Urban Development Areas represent those parts of the City where it is proposed that urban development will occur or substantially commence during the period up to 2011.  For the purpose of the Strategic Plan, ‘Urban Development’ means the array of land uses usually associated with urban areas including residential ... , commercial, commerce and trade ...

The most common form of development in the Urban Development Areas will be residential development.  However, subject to detailed development siting requirements, other forms of urban development will be encouraged in appropriate locations.”

  1. The intent of District Centres is set out in item (6):

The Strategic Plan also proposes as part of the Urban Development Areas Strategy, the development of eight (8) District Centres, based on the existing centres at Yamanto, ...

The District Centres are intended to complement the role of the City Centre and the Town Centres.  Therefore, those uses which are more appropriately located within the City Centre and the Town Centres (e.g. major administration and office developments) will not be permitted to be established in the District Centres.

Whilst it is intended that the existing nominated centres may be permitted to expand to achieve the functional requirements of a District Centre, such expansion will only be permitted if there is a demonstrated need and demand for such expansion, and such expansion is in accordance with the provisions of a structure plan for the area concerned.

District Centres are also intended to cater for the convenience needs of nearby residents.”

  1. The urban development area strategy is set out in s 4.3 of the strategic plan. Relatively little attention was paid to this strategy in the course of the hearing, despite the fact that this was the strategy which directly applied to the Stockwell proposal. Doubtless, that was because it was not contended that anything in it constituted an obstacle to the development application.
  1. Section 4.4 sets out the commercial and community centres strategy. It is unnecessary to quote it in full.  Under the heading “Key Issues”, it provides:

“As population growth continues within the City it is important that a balance be achieved between satisfying the community’s shopping and social needs/desires whilst at the same time protecting the considerable investment and employment attached to existing centres.

Essentially the key issues for a commercial and community centres strategy revolve around the following considerations:

  • the need to provide a hierarchy of centres to satisfy the community’s demand for employment, shopping, business and social opportunities while protecting the viability of the existing centres ...”

Under the heading “Strategy Approach”, it provides:

“To ensure that any commercial or community facilities development within Ipswich City is cognisant of the role of the Central Business District (CBD) and of the City’s role in the regional and sub-regional context it is important that a Centres policy be clearly articulated with regard to the intended level of development at various locations.

...

This strategy aims to improve the economic well-being of the Ipswich retailing network and to improve the level of service offered to consumers.  The key to implementing this strategy is to promote a broad hierarchy of retailing centres based on the development of:

(a)the City Centre as the dominant centre in the Western Sub Region;

(b)Town and District Centres at highly accessible locations; and

(c)local and neighbourhood facilities distributed to maximise convenience.

This hierarchical structure will provide a range of commercial and community centres and shopping opportunities ...”

Implementation criteria

  1. Thereafter, 13 objectives for the implementation of the strategy are set out. Each objective has a set of what are termed implementation criteria. Those central to the argument in this appeal are:

“Objective 5: To achieve an overall balance between the desire to satisfy the community’s commercial (including retail) demands and needs and the desire to protect investment and employment within existing centres which provide a good level of service.

Implementation criteria

1This objective should be implemented with the intention to:

...

(d)maintain an adequate level of competitiveness amongst retail outlets.

...

3In considering development proposals involving the creation of new centres or the expansion of existing centres, the Council will take into account, amongst other necessary items, the following matters:

...

(f)whether the establishment of the proposed facilities would result in an excess of commercial floor space of the type proposed in the area or would result in an excess of commercial floor space generally and whether the proposal may be premature or inappropriate in this regard;

(g)the likely impact of the proposed development expressed wherever possible in terms of business closures and job losses, on the existing facilities in the area [likely to be serviced by the proposed facility and in surrounding areas which could be affected by it], together with the additional cumulative effect of any approved new commercial developments within the same area;

...

Objective 12: To discourage commercial development from locating outside Centres, where that development would hinder or would detract from the development of nearby centres, or intrude upon the amenity of existing or future residential areas.

Implementation criteria

  1. Commerce and Trade Areas will be encouraged to cater for those developments which cannot be accommodated within or adjacent to the centres.

...

  1. In considering applications for the development of land within the Commerce and Trade Zone or for the inclusion of additional land within this zone, the Council will take into consideration the following particular aspects:

...

(c)any adverse effects upon existing commercial establishments or planned future centres;

(d)the convenience of the public to be served by the proposal;”

Objectives of the commerce and trade zone

  1. Two of the six objectives are relevant for present purposes:

“(a)to provide for the establishment of a mixture of compatible commercial, service and trade activities (which includes light and small manufacturing industrial activities) that support and are within close proximity to the Town, District and Neighbourhood Centres while not jeopardising the retail function of those centres;

(b)to permit compatible retailing or commercial premises on a controlled basis having regard to the Commercial and Community Centres Strategy outlined in the Strategic Plan.”

By reason of the plan definitions, “commercial premises” does not include a tavern.  “Retailing premises” is not defined.

The issues

  1. The notice of appeal to the Planning and Environment Court raised a large number of issues. Some of these were abandoned in particulars delivered in that court before the hearing of the appeal. Others did not remain in issue by the end of the hearing or were not pursued in this Court. Those that remained were categorised under two headings by Mr Gore QC, counsel for Ballymont: first, issues related to the strategic plan and second, issues of general principle. Counsel submitted that the judge below made a number of errors in both categories. It is convenient to deal with these alleged errors generally in the sequence in which they were raised by counsel.

Failure to ask the right question

  1. Because the planning scheme was a “transitional planning scheme”, it fell within ss 6.1.29 and 6.1.30 of the Integrated Planning Act 1997.  By reason of the operation of s 6.1.30(3)(b), the Council, and hence the Court, was obliged to decide the application under ss 4.13(5) and 4.13(5A) of the Local Government (Planning and Environment) Act 1990.  Those sections provided:

(5)  In deciding an application made to it pursuant to section 4.12 a local government is to—

(a)approve the application; or

(b)approve the application, subject to conditions; or

(c)refuse to approve the application.

(5A)  The local government must refuse to approve the application if—

(a)the application conflicts with any relevant strategic plan or development control plan; and

(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”

  1. Ballymont’s first submission was that the learned judge failed to ask himself the right question. It submitted that he asked only whether there was any conflict between the proposal and the strategic plan provisions and did not consider whether, simply by application of the objectives and criteria set out in the strategic plan, the application ought to be refused. It submitted, as I understand it, that to succeed, Stockwell was obliged to prove both that the approval was correct on general town planning principles and that the Court was not obliged to refuse the application under s 4.13(5A).
  1. In response, Stockwell argued that once the Court was satisfied of the matters set out in para (b) of that section, nothing remained to be decided. Otherwise, there would never be scope for that paragraph to operate. The fact that s 4.13(5A) identified only an occasion for mandatory refusal, not a basis for approval, founded no more than “an argument simply of terminology”.
  1. In theory, Stockwell’s argument cannot be correct. The Planning and Environment Court, sitting in place of the local government, was required either to approve the application, approve it subject to conditions or refuse to approve it.[2]   Subsection (5A) deals only with mandatory refusal; it does not deal with approval.  In theory, the Court might be satisfied in a particular case that there were sufficient planning grounds to justify approving the application, despite a conflict with a strategic plan; but that for other town planning reasons, the application should nonetheless be refused.  Logically, if the Court first decides not to refuse an application under subs (5A), it must then consider whether the application should be approved on ordinary principles and having regard to all relevant matters (which may extend far beyond matters contained in the strategic plan and which may, in theory, include matters not considered at that point).  For example, there could be sufficient planning grounds to justify approval despite a trivial or semantic conflict with the strategic plan; but those grounds might be insufficient to win approval of the application.
  1. That is the theoretical position. In practice, it is likely that in many cases, little if anything will remain for consideration once an application has jumped the hurdle of s 4.13(5A). That is because in practice, it will often be the case that the issues of fact constituting the planning grounds required to be considered under para (b) of that subsection are the same as those required to be considered in determining whether to approve the application under s 4.13(5). It is not because, as a matter of law, those sections necessarily raise identical issues.
  1. In the present case, the trial judge considered the issues primarily by reference to s 4.13(5A), particularly para (a) of that provision, although he also gave consideration to questions of need and demand in a general planning sense.  He did not spell out his approach by reference to the theoretical considerations to which I have referred.  When one looks at the notice of appeal to the Planning and Environment Court as particularised and at Ballymont’s written submissions to that Court at the end of the hearing, it is not surprising that he took this course.  That is how Ballymont itself approached the matter.  Mr Gore QC met that point by submitting that it was “for the primary Judge to decide for himself irrespective of submissions that are made to him what the correct position is.”  With the greatest respect, it was not the judge’s duty to reformulate the issues put to him by experienced counsel.  He was entitled to follow the form of argument advanced by Ballymont.  In the course of dealing with the question of conflict, his Honour raised and dealt with all the relevant planning issues.  His approach discloses no error of law.

Section 4.2 item (6) of the strategic plan

  1. Section 4.2(6) of the strategic plan describes the preferred dominant land use for District Centres. Since the land the subject of the Stockwell proposal is not in a District Centre, its relevance is not immediately obvious. Ballymont argued that the proposal constituted an expansion of the Yamanto District Centre and that, therefore, the third paragraph of the description applied. It submitted that this paragraph “stands on its own feet” and required Stockwell to prove a demonstrated need and demand for another tavern in the area. Stockwell relied on the argument which it advanced below and which was accepted by the judge. It argued that when the section is read sensibly it can be seen that its intention is to protect the City and Town Centres from over-development of District Centres.
  1. In my judgment, that argument is correct. It would be a mistake to read the third paragraph of the section in isolation from its context. The City Centre, the Town Centres and the District Centres are explicitly hierarchical. The expansion which is spoken of in the passage relied on by Ballymont refers not to geographical expansion, but to functional expansion (which may of course include geographical expansion). Such expansion is limited in the context of the statement of the intent of the preferred dominant land use to preserve the hierarchy of centres there established. No authority was cited to us to support interpreting the paragraph as if it stood alone, and such an approach would be contrary to principle. Since there was no suggestion that the proposed development had any impact on the hierarchy of centres, s 4.2 item (6) was irrelevant.
  1. Even if “expansion” were taken to refer to geographical expansion, the paragraph had no application in the present case. For the reasons developed below, Stockwell’s proposal did not involve an expansion of the Yamanto District Centre.

Objective 5 criterion 3

  1. I have already set out the relevant parts of the commercial and community centres strategy[3] and the relevant objectives and implementation criteria.  Ballymont argued that the judge failed properly to take criterion 3 for objective 5 into account.  However, criterion 3 applied only to proposals “involving the creation of new centres or the expansion of existing centres”.  No one argued that the proposal involved the creation of a new centre, nor did the judge make any such finding.  He did, however, find that “in a technical sense, [the proposal] might arguably involve an expansion of the District Centre”.  That is some way from a finding that the proposal did involve such an expansion.  Stockwell argued that no such expansion was involved and that criterion 3 therefore had no application.  For the purposes of discussion, I shall assume in Ballymont’s favour (and contrary to my finding above) that in this context, “expansion” refers to geographical expansion.
  1. The judge found (in accordance with Ballymont’s submission) that the subject land was not within the Yamanto District Centre. It was in fact 1.25km from the Centre. Access from it to the Centre was along Warwick Road, a main road along which was a variety of commercial and light industrial uses and many vacant blocks of land. Geographically it was quite distinct from the Centre. Inclusion of the area between it and the Centre would be incongruous. Geographically, it would have been nonsensical to describe the proposed tavern as an expansion of the Centre. Professor Brannock, an expert called by Stockwell, expressed the view that the proposal would involve an expansion of the District Centre. However, the judge was not bound to accept that evidence. He could apply his own experience (including his experience in this jurisdiction), his commonsense and his understanding of the common usage of words to reach a different conclusion. He was not bound to find that the proposal involved an expansion of the existing Centre, and he did not do so. His failure to do so involved no error of law.
  1. Consequently, the judge was not bound to apply criterion 3 for objective 5. It is unnecessary to consider whether the approach which he in fact adopted was correct.

Objective 12 criteria 1 and 6

  1. Ballymont argued that by reason of criterion 6(c) for objective 12, the judge was obliged to take into account any adverse effect upon existing commercial establishments and that pursuant to criterion 1, duplication of the tavern already accommodated within a District Centre was discouraged. It argued that he misconstrued both of these provisions by concluding that they were not concerned with individual elements of the Yamanto District Centre, each part of which was entitled to the protection intended by the strategic plan.
  1. Criterion 1 may be disposed of quickly. It may be assumed for this purpose that “Commerce and Trade Areas” means areas within the commerce and trade zone. The criterion provides that such areas “will be encouraged to cater for those developments which cannot be accommodated within or adjacent to the centres.” It is not possible to read this to mean that all other development is discouraged. The most that can be said is that this criterion affords the Stockwell proposal no advantage. It was therefore irrelevant, which doubtless explains why the judge below did not refer to it in his reasons for judgment.
  1. Criterion 6(c) was directly relevant, because the Stockwell land lay within the commerce and trade zone.  After quoting the criterion, the judge said:

“In obedience to this Criterion I believe that a consideration of any adverse effect upon existing commercial establishments is justified but again it has to be recognised that the objective has in mind the potential to ‘hinder or detract from the development of nearby centres’.  Accordingly, it is debatable whether the criterion has in mind adverse effects upon the Yamanto Centre as a whole or elements of that Centre.  I believe that the emphasis should be upon the former proposition.”[4]

Nonetheless, his Honour then proceeded to describe and assess (in a somewhat economical fashion, it must be admitted) the evidence of Ballymont’s witnesses relating to the impact of the proposal on the Yamanto Tavern.  He expressed uncertainty and doubt about that evidence, but did not make any express finding regarding the alleged adverse effects upon the tavern.

  1. Ballymont did not directly attack this omission as a ground of the appeal, doubtless because it is not difficult to infer a finding from what his Honour said. It did, however, argue that by glossing over the issue he failed to treat the criterion as a fundamental matter in the sense described in Zhang v Canterbury City Council.[5]  That meant, it was submitted, that his Honour failed to “take into consideration” the adverse effect of the Stockwell proposal upon the existing tavern.
  1. Did the judge conclude that criterion 6 was not concerned with individual elements of the Yamanto District Centre? In my judgment, he did not. On the contrary, he expressly referred to the question of adverse effect upon existing commercial establishments. It is true that by reference to the terms of the Objective itself, he also held that the emphasis should be upon the effects on the Centre as a whole, but in that regard his interpretation was, I think, correct. The Objective in terms is concerned to safeguard nearby centres. The Objective is not to safeguard individual businesses, although adverse effects on existing businesses are a relevant consideration. His Honour referred to Ballymont’s evidence on the point and was plainly unimpressed by it.
  1. Did he fail to give it sufficient weight by not treating it as a fundamental matter?  I shall assume for present purposes that such a failure would constitute an error of law.  Stockwell sought to distinguish Zhang v Canterbury City Council on the basis that the applicable statutory regime in New South Wales was quite different from that in Queensland.  It argued that the provisions of the development control plan which the New South Wales Court of Appeal regarded as being of fundamental importance gained their status because the Act required that they be taken into consideration.  By contrast, the provisions of the Ipswich Strategic Plan were not binding.  Under s 4.13(5A), the application could be approved despite a conflict with the plan.  Moreover, the plan stood as no more than a policy statement, and did not have the force of law.
  1. For this last proposition, Stockwell relied primarily upon Zieta No 59 Pty Ltd v Gold Coast City Council.[6]  When that case was decided, a strategic plan under the relevant Act consisted of:

“(a)a map or series of maps identifying preferred dominant land uses;

(b)a statement of objectives of the Local Authority in relation to preferred dominant land uses together with other criteria for determining the type, scale or distribution of other uses required as an integral component to service the preferred dominant land uses;

(ba)copies of writings for the implementation of that plan;

(c)copies of writings containing supporting information used or in connexion with for the preparation of that plan.”

The Act in question provided that the town planning scheme consisted of (among other things) the strategic plan; and further provided that once gazetted, the scheme “shall have the force of law and be binding upon and obeyed by the Local Authority and all persons whomsoever accordingly”.

  1. Relying on those provisions, the appellant in that case had argued that certain statements in the supporting documentation had mandatory operation with the force of law. Unsurprisingly, the Court rejected that argument. The provisions in question could not in their terms be so interpreted. Connolly and McPherson JJ also referred with approval to Curtis v Beaudesert Shire Council,[7] where the Court held that the legislation did not cause the objectives stated in a strategic plan to lose their character as objectives.  It is worth noting that in the latter case, the objectives in question were contained in a series of policy documents.  Neither of these cases decided that everything in a strategic plan has the status of a policy or that objectives cannot have the force of law.[8]  Neither decided that a strategic plan may not prescribe mandatory requirements in particular terms.[9]
  1. Stockwell made no attempt to trace the impact of the various statutory changes which have taken place since Curtis and Zieta were decided.  In the circumstances, I am not prepared as presently advised to hold that the whole strategic plan had no more force than as a policy.
  1. Nor do I think that Zhang v Canterbury City Council can be distinguished by reference to the controlling legislation in New South Wales.  The relevant Act in that case provided: “In determining a development application, a consent authority is to take into consideration” the provisions of any applicable development control plan.  In the present case, the Act provides that the planning scheme, to the extent relevant, applies for assessing the application.[10]  Since the strategic plan is part of the planning scheme, that must mean that the Court must take the provisions of the plan into consideration in making its assessment.  That approach is reinforced by the terms of criterion 6 itself: “The Council will take into consideration ...”.
  1. A different picture emerges, however, when one comes to examine the substantive planning provisions which are to be applied. In Zhang v Canterbury City Council, the development control plan in question contained a number of access and location requirements whose objectives included ensuring that brothels were located at a reasonable distance from residential occupancies and other sensitive land uses.  These requirements included a list of standards concerning the application of those objectives.  One standard provided, “A brothel shall not be located adjoining or within 200m walking distance of any place of worship, school ... .”  The application was for a brothel immediately adjacent to a church and within 200m of a school.  The Tribunal, at first instance, considered those matters but not on the basis that there were standards having a presumptive effect.  The New South Wales Court of Appeal held that the access and location requirements were themselves entitled to significant weight in the decision-making process and that the standard ought to have served as a focal point for, or constituted a fundamental element in the Tribunal’s deliberations.
  1. The terms of criterion 6 are very different. Criterion 6(c) makes no attempt to prescribe a standard by reference to the nature or type of acceptable or unacceptable adverse effects. It simply lists certain adverse effects as matters for consideration. There is no indication that this paragraph is any more important than another in criterion 6, or that criterion 6 is any more important than any of the other implementation criteria for objective 12. It is for this reason that Zhang v Canterbury City Council does not advance Ballymont’s case. The judge below did not fail to give proper weight to criterion 6.  There was no error in the application of objective 12.

The Draft Southern Corridor Structure Plan

  1. Structure plans are one of the three main elements comprising the Ipswich Planning Scheme.[11]  In September 2000, the Council published in draft the Southern Corridor Structure Plan, which covered all relevant areas.  It was common ground that it was proper for the judge to take this draft into account.  Like so many town planning documents, it begins with utopian statements of its aim and vision for the future, couched in motherhood terms and apparently useless for the purposes of interpreting the remainder of the document.  Counsel made no reference to them and I shall not waste space recording them.  More relevantly, part three of the Structure Plan divided the plan area into precincts.  The subject land was in a local employment and services precinct, while the Yamanto Centre was in the major neighbourhood centre precinct.  The latter abutted the southern end of the former precinct which in turn continued north-east along Warwick Road to a point slightly beyond the Stockwell site.  The intent of the local employment and services precinct was stated as follows:

“Designated lands located on Warwick Road in the vicinity of the Yamanto District Centre are intended to provide for a range of business and industry uses on fully serviced land which caters to the needs of the local community, provides local employment and capitalises on the resources/markets of the local area.  The development of this area should support the role of the Yamanto Centre in providing services and trades not catered for within the retail centre.  Uses may include [a list which does not include a tavern].”

Ballymont submitted that the judge misconstrued or failed to take account of this provision.

  1. It must be remembered that in taking this provision into account, the judge was not simply applying a statute to a particular set of facts. The draft plan was one factor to be weighed in the circumstances of the case. Its provisions had to be considered in the light of the zoning of the land for commerce and trade. Its applicability also depended upon issues of fact.
  1. The intent of the Commerce and Trade Zone is set out above.[12]  The judge referred to this intent at an early point in his reasons and held, “It is difficult to see any conflict between the proposal and those objectives”.  Shortly afterwards, he referred to the draft Southern Corridor Structure Plan and the studies made for that plan.  He found, “For reasons explained by Professor Brannock the proposal appears to conform with the intention of [the local employment and services] designation.”  Professor Brannock had expressed the opinion that the existing tavern did not adequately cater for the area and that the proposed development would do so.  He was pressed on that opinion in cross-examination, but adhered to it.  His Honour was quite entitled to accept that evidence, and doing so involved no misconstruction of the plan.  His conclusion was one of fact.  No appeal lies in respect of it.

Need

  1. Ballymont’s argument on the question of need was somewhat elusive, in the sense that during the hearing it was not always easy to pin counsel down to a precise statement of the alleged error of law below. Some confusion was engendered by counsel’s description of need as a “threshold” issue. Further confusion arose from the submission that the judge’s statement, “Notwithstanding the submissions made by counsel for the appellant, I believe that the well-known statements in the judgment of Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 remain good law,” revealed an error or errors of law.  My greatest difficulty, however, was identifying whether Ballymont contended that the judge erred by dealing with need as an issue separate from and independent of the strategic plan; or whether he erred by not so dealing with it.  I shall address the arguments advanced in Ballymont’s outline of submissions.
  1. The issue of need was raised in Ballymont’s amended notice of appeal to the Planning and Environment Court:

“9.The first and second co-respondents have not demonstrated a community need for and benefit from the proposed use which requirement is, inter alia, made relevant by virtue of Part 6 of the Planning Scheme.”

When asked to particularise “inter alia”, it responded:

“8. Community need for, and benefit from, the proposal:

(a)is a matter properly considered in determining the merit of the proposal from a town planning perspective independent of the requirement in the Transitional Planning Scheme;

(b)is a matter for consideration having regard to the matters raised in relation to the prematurity of the proposal both in the Notice of Appeal and in the particulars that are provided in this Response.”

  1. The reference to Part 6 of the planning scheme was apparently a reference to the following provision:

“73(1)Without limiting its discretion, the Council shall, before determining an application, take into consideration all relevant matters required under the Act to be considered, together with any or all of the following matters as relevant to the application:

(u)The community need for and benefit from the proposal.”

  1. Need remained in issue at the end of the hearing and had to be resolved by the judge.  He dealt with it in three paragraphs.  These occur after the substance of his discussion of the question of conflict between the application and the strategic plan, but immediately before the paragraph which states the judge’s conclusion on that question.  After that conclusion, the judge moved on to consider in the alternative whether sufficient planning grounds existed to justify approval notwithstanding any conflict.  On the question of need, he wrote:

“[22]In relation to the question of need and demand in a planning sense the matter is to be considered more from the community’s perspective and impact upon profitability of a commercial competitor is of considerably less importance.  Notwithstanding the submissions made by counsel for the appellant I believe that the well known statements in the judgment of Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 remain good law.

[23]Professor Brannock who is not without experience in these matters considered the question of community need and benefit.  He pointed out that this part of Ipswich is one of the highest growth sectors of the city.  His opinion was that:

‘From a town planning viewpoint given the extent of residential development planned in the Yamanto area there is scope for the existing tavern to service the residential areas most proximate to its location as well as visitors and employees of the shopping center and for the proposed Oasis Tavern to service the existing and future residents and employees in its vicinity’

[24]Had it not been for the passages in the Strategic Plan to which reference has been made I doubt whether the question of community need would have been of great moment in the case.  The need [sic] was always accepted to be a relevant factor when an amendment to a town planning scheme was being sought.  This was legislatively recognized in s.4.4.(3)(b) of the Local Government (Planning and Environment) Act.  This case is not one where rezoning would have been called for.”

  1. Ballymont argued that the judge “erred in principle”[13] in four ways:

“(a)by dismissing the Appellants’ case on the need issue in reliance upon Kentucky Fried Chicken;

  1. by doubting whether need was of great moment in other than a rezoning case;
  2. by confusing the issue of impact upon profitability of a competitor with the threshold issue of need;
  3. by failing to address the threshold issue of need.”

Alleged error (a)

  1. It was accepted in this Court that the “well-known statements” to which his Honour referred comprised the following passage from the judgment of Stephen J:

“If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning.  It does not cease to be so because the profitability of individual existing businesses are [sic] at one and the same time also threatened by the new competition afforded by that new development.  However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.”[14]

  1. His Honour correctly observed that this remains good law. However, he did not dismiss Ballymont’s case on need on this basis. He implicitly accepted Professor Brannock’s evidence and rejected Ballymont’s case in consequence.

Alleged error (c)

  1. Even in the absence of express statutory provision, need was a relevant (though not necessarily a determinative) consideration in assessing a development application made under the Local Government (Planning and Environment) Act 1990;[15] and consequently in assessing an application to which a transitional planning scheme applies under the Integrated Planning Act 1997.[16]  In the present case, that position is confirmed by part 6 of the planning scheme.  The types of circumstances that can be relevant to the issue of need are various.  I have said elsewhere: “it should be remembered that need has many aspects”.[17]  It is a relative concept, to be given a greater or lesser weight depending on all of the circumstances which the planning authority must take into account.[18]  What is not relevant to need, except in the circumstances described by Stephen J, is the economic impact of a proposal on a competitor.  At first sight, therefore, it is surprising to see the questions of need in the planning sense and impact upon profitability of a competitor dealt with in the same paragraph, as his Honour has done.
  1. To understand his Honour’s approach, it is necessary to have regard to the case presented to him by Ballymont. In that case, Ballymont did not limit itself to the aspects of need referred to in its notice of appeal and particulars. It expanded its argument on need by particular reference to clause 4.2 item (6) of the strategic plan.[19]  It submitted that in determining the manner in which the strategic plan contemplates that need or demand may be demonstrated, reference to the operative provisions of the plan was appropriate.  It referred to provisions for the protection of investments in existing centres and for the consideration of adverse effects on existing commercial establishments.  It did so not only in the section of its final submissions dealing with the strategic plan (section 5.0), but also in the section dealing with need (section 7.0):

“7.9Properly construed, the Strategic Plan requires the Developer to demonstrate something considerably more than that the proposal in some limited respect provides a different type of facility.

7.10The Strategic Plan does not countenance approval regardless of impact; it speaks instead of demonstrated need or demand and requires the analysis of impact; it seeks to foster existing facilities unless they are demonstrated to be inadequate.

7.11Assessment of impact is expressly required and that is what Norling considered and there is no good reason not to accept Norling’s evidence.

7.16It is plainly inappropriate to approve the Oasis Hotel in these circumstances, particularly when the Developer has presented no considered analysis of the likely impact on the Yamanto Tavern and the Yamanto Seven Day Centre.

7.17Council did not require an assessment, choosing instead to dismiss consideration of need on the ground that additional choice was all that was required.  The Strategic Plan does not countenance that approach.  Choice is only one aspect of demonstrating a need or demand and says nothing of impact on existing facilities.

7.18Rarely has clearer guidance been given that impacts on existing commercial operations are important.  This emerging importance of considering the impact on existing facilities is not surprising and entirely consistent with IPA which identifies the taking into account and avoidance of adverse environmental effects as a matter that advances the purpose of that act, “environment” being defined to include matters economic.”[20]

Ballymont’s approach became explicit in its written reply in the court below.  Section 3 of that document, headed “Need and Impact”, began:

“The issue of need does not only derive from paragraph 9 of the Notice of Appeal as seems to be suggested in paragraph 2(b) in the Developer’s Submissions; demonstration of need for the proposed tavern and the absence of adverse effect on existing establishments is integral to the determination of the Appeal on the proper construction of the provisions of the Planning Scheme identified in the Appellants’ Submissions.”

  1. In the light of these submissions, it is hardly surprising that the judge referred to impact on the profitability of a competitor in the context of his discussion on need.  If there was an element of confusion in his judgment, it was entirely the result of attempting to deal with the case raised by Ballymont.  Moreover it has, if anything, worked to Ballymont’s advantage.  In the context of the question of need in the planning sense, one would have expected his Honour to have said, in the light of his reference to Gantidis, that impact upon profitability of a commercial competitor was of no importance at all.  By giving it some importance, he conferred a benefit on Ballymont.  But that benefit did not include a ground of appeal to this Court.

Alleged error (b)

  1. Determining the importance of need in any particular case involves the resolution of questions of fact and judgment. Doubtless, its importance may be affected by the nature of the particular application. It may well be that need is seldom of great importance except in cases which would formerly have required an application for rezoning. Assuming that Ballymont has in para (b) correctly interpreted what his Honour wrote, it was no more than a passing comment on a matter of fact. It discloses no error of law.

Alleged error (d)

  1. As the passage quoted above shows[21], the primary judge did address the issue of need (which incidentally is not a “threshold” issue).  He found against Ballymont on the facts.

Conclusion

  1. The appeal should be dismissed with costs.
  1. WILSON J: I agree with the reasons of Fryberg J and with the orders he proposes.

Footnotes

[1] Sections 6.1.3(1), 6.1.4(1), 2.1.23(1) and the definition of “planning instrument” in sch 10 of the Act.  It was not argued that the relevant provisions of the scheme prohibit development within the meaning of s 2.1.23(2) or that they are in any other way inconsistent with ch 3 of the Act.

[2] Section 4.13(5).

[3] Para [11].

[4] At para [19].

[5] (2001) 51 NSWLR 589.

[6] [1987] 2 Qd R 116.

[7] [1983] 1 Qd R 201.

[8] Acts of Parliament frequently state objectives.  It could hardly be suggested that they are not part of the Act or that they do not have the force of law.

[9] Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 230.

[10] Integrated Planning Act 1997, s 6.1.29(3)(b).

[11] Para [5].

[12] At para [12].

[13] Presumably, this is intended to mean “erred in law”.

[14] Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 687.

[15] Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347; Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116.

[16] Section 6.1.29(3)(i).

[17] Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35 at p 46.

[18] Intrafield Pty Ltd v Redland Shire Council (supra) at [20].

[19] Para [9].

[20] The imaginative argument advanced in para 7.18 was not advanced in this Court.

[21] Para [45] .

Close

Editorial Notes

  • Published Case Name:

    Ballymont P/L & Anor v Ipswich City Council & Ors

  • Shortened Case Name:

    Ballymont Pty Ltd v Ipswich City Council

  • Reported Citation:

    [2003] 2 Qd R 461

  • MNC:

    [2002] QCA 233

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Fryberg J, Wilson J

  • Date:

    28 Jun 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment NA - -
Appeal Determined [2003] 2 Qd R 461 28 Jun 2002 -

Appeal Status

{solid} Appeal Determined (QCA)