Longhurst v Austexx Developments Pty Ltd
[2003] QCA 576
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Longhurst v Austexx Developments Pty Ltd[2003] QCA 576
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Longhurst v Austexx Developments Pty Ltd[2003] QCA 576
Longhurst v Austexx Developments Pty Ltd[2003] QCA 576
SUPREME COURT OF QUEENSLAND
PARTIES: | LEWIAC PTY LTD & ING REAL ESTATE JOONDALUP BV ACN 008 524 801 ACN 086 328 109 LOGAN CITY COUNCIL ACN 086 328 109 |
FILE NO: | Appeal No 7676 of 2003 Appeal No 7712 of 2003 Appeal No 7749 of 2003 P&E No 4642 of 2002 P&E No 4446 of 2002 P& E No 4106 of 2002 |
Court of Appeal | |
PROCEEDING: | Application for leave to appeal Integrated Planning Act |
ORIGINATING COURT: | |
DELIVERED ON: | 24 December 2003 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 December 2003 |
JUDGES: | McMurdo P, McPherson JA and Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDERS: | (i)John Clifford Longhurst and QIC Logan Hyperdome Pty Ltd, Lewiac Pty Ltd and ING Real Estate Joondalup B.V., and Logan City Council all be granted leave to appeal in Appeals No. 7676/2003, 7712/2003 and 7749/2003 respectively. (ii)The orders made by the Planning and Environment Court in each of applications no. 4106, 4642 and 4446 of 2002 should be set aside. (iii)The cross-applications brought by Austexx Developments Pty Ltd for leave to appeal against the orders made in the three applications should be refused. (iv)In application 4106 of 2002 there should be an order that the application be dismissed. In each of applications 4642 and 4446 of 2002 there should be declarations that: Upon the proper construction of the Planning Scheme for the City of Logan, the development applied for and described in a development application made by Austexx Developments Pty Ltd on 2 September 2002 (a)does not constitute development for the purposes of a ‘retail showroom’ (b)requires ‘impact assessment’ for the purposes of the Integrated Planning Act 1997 (Qld) (c)may not be approved by the Logan City Council unless Chapter 3 Part 4 of the Integrated Planning Act 1997 (Qld) has been complied with. (v)Austexx Developments Pty Ltd should pay the costs of and incidental to the applications for leave to appeal and the appeals to be assessed on the standard basis. |
CATCHWORDS: | LOCAL GOVERNMENT – ORDINANCES, REGULATIONS, BY-LAWS AND LOCAL LAWS – NATURE OF – TOWN PLANNING – CONSENT AND APPROVAL OF COUNCILS – CONTROL OF PARTICULAR MATTERS – PARTICULAR USES - application for leave to appeal a decision of Planning and Environment Court - Integrated Planning Act 1997 (Qld) s 4.1.56(2) – where preliminary council approval for the development of a direct factory outlet – whether development to be ‘code assessable’ or ‘impact assessable’ as defined under the Act- whether proposed direct factory outlet constitutes a ‘retail showroom’ or a ‘shopping centre’ as defined by the Act – where requirement that goods sold ‘be of a similar nature’ |
COUNSEL: | P A Keane QC, with R S Litster, for the applicants Longhurst and QIC Hyperdome Pty Ltd D T Jackson QC for the applicants Lewiac Pty Ltd and ING Real Estate G J Gibson QC for the applicant/respondent Logan City Council D R Gore QC, with M E Rackemann, for the respondent/applicant Austexx Developments |
SOLICITORS: | Allens Arthur Robinson for the applicants Longhurst and QIC Hyperdome Pty Ltd Freehills for the applicants Lewiac Pty Ltd and ING Real Estate Corrs Chambers Westgarth for the applicant/respondent Logan City Council Connor O'Meara for the respondent/applicant Austexx Developments |
[1] McMURDO P: I agree with the orders proposed by Chesterman J and with his reasons.
[2] McPHERSON JA: I agree with the reasons of Chesterman J, and with the orders he has formulated.
[3] CHESTERMAN J: On 18 August 2000 the then owner of land located at Burchill Street, Loganholme on the eastern side of the Pacific Highway near its junction with the Logan Motorway obtained preliminary approval from the Logan City Council (“the Council”) for a number of types of development. They included commercial premises, commercial services, detached bottle shop, food outlet, retail showroom, market, restaurant and local shop. The approval indicated that development for retail showrooms was to be ‘code assessable’ as that term is defined by the Integrated Planning Act 1997 (Qld) (“the Act”) but that other forms of development were to be ‘impact assessable’ as defined under the Act.
[4] The preliminary approvals given to Austexx by the Council contained a term that the development of the site should be in accordance with the table of development set out in the approval. Relevantly it identified retail showrooms as ‘code assessable development’. By contrast food outlets, local shops and shops were all said to be ‘impact assessable development’. Development for any purpose other than one specified in (relevantly) the columns which identified code assessable developments and impact assessable developments were incompatible developments. Although not prohibited as such approval for such a development is likely to be difficult to achieve in practice.
[5] The land is vacant and has an area of 5.176 hectares. Most of it is included in the general industry zone. The balance is in the particular purpose zone. It is about three kilometres south of the Loganholme Hyperdome shopping centre which is the largest such centre found within the Council’s Planning Scheme. The Logan Hyperdome shopping centre is jointly owned by Mr Longhurst and QIC Logan Hyperdome Pty Ltd (“Hyperdome”).
[6] On 2 September 2002 Austexx Developments Pty Ltd (“Austexx”) applied to the Council for a development permit to allow the development of a ‘direct factory outlet (retail showroom)’ on the land. The proposed development is for a building having a gross floor area of 20,000 square metres (i.e. two hectares) partitioned into separate areas which are to be separately let. The total net leaseable area will be 15,630 square metres in respect of which it is proposed there will be:
- 37 retail tenancies each with a net lettable area of less than 200 square metres
- 11 retail tenancies each with a net lettable area of exactly 200 square metres
- 25 retail tenancies each with a net lettable area exceeding 200 square metres
- 5 café tenancies each with a net lettable area of 180 square metres
- 2 areas aggregating 540 square metres to be used as public seating located adjacent to the cafes
The proposed layout is for a rectangular building with a central mall leading onto wide aisles giving access to each of the retail tenancies and the cafes. The retail tenancies will offer for sale the following categories of goods:
Womens clothing
Mens clothing
Hand bags
Luggage
Footwear
Lingerie
Sleepwear
Sports clothing
Cosmetics
Children’s clothing
Jewellery
Accessories
Homewares
Manchester
The proposal includes parking for 801 cars. The development would serve the Brisbane metropolitan area and significant parts of South East Queensland.
[7] A direct factory outlet was described as an:
‘… environment for manufacturers, wholesalers, distributors and retailers (the traders) to sell clearance product to the public.
Clearance product is:
- Surplus stock not sold by the traders (in the case of manufacturers, wholesalers and distributors it is stock not sold to their retail customers and in the case of retailers, it is stock not sold to the public in their traditional retail stores)
- Out of season stock
- Inferior quality stock not sold in traditional retail stores
- Odd lots (e.g. incomplete size and colour ranges)
- Seconds, damaged and irregular stock
- Samples
Direct factory outlet is a single building under one ownership with a circuit mall accessing all tenancies via roll-a-door entrances. Each tenancy has partitioned tenancy divisions that extend only partway to the roof and the tenancies do not have ceilings. The building is air-cooled. Food is provided for onsite consumption by patrons and staff.
Direct factory outlet provides a low cost environment for traders to sell lower margin clearance products.’
[8] By a letter dated 19 September 2002 the Council advised that it considered the proposal was for a shopping centre, not for a retail showroom, with the result that the development was subject to impact assessment rather than code assessment in accordance with the preliminary approvals issued earlier.
[9] By an originating application filed in the Planning and Environment Court on 8 October 2002 Austexx sought against the Council a declaration that ‘upon the proper construction of the Logan City Council Planning Scheme, the development applied for … does not constitute a “shopping centre”; it constitutes “a retail showroom”; requires code assessment.’ By a separate originating application filed in the Planning and Environment Court on 25 November 2002 Hyperdome sought against Austexx and the Council a declaration that ‘upon the proper construction of the planning scheme for the City of Logan the development applied for by (Austexx) … does not constitute development for the purposes of “retail showrooms”; requires “impact assessment” …’
[10] Lewiac Pty Ltd and ING Real Estate Joondalup B.V. (“Lewiac”) own and operate the Harbourtown shopping centre at Biggera Waters on the northern end of the Gold Coast. That centre contains a number of stores similar to those proposed by Austexx for its development.
[11] By another originating application in the Planning and Environment Court dated 11 December 2002 Lewiac sought against Austexx and the Council a declaration to the same effect as that sought by Hyperdome.
[12] The three applications were heard together by his Honour Judge Quirk on 13 and 14 February 2003. On 28 July 2003, on the application brought by Austexx, his Honour declared that the development applied for was a retail showroom and requires code assessment only. He further declared that one aspect of the development, namely the 720 square metres of refreshment facilities, was a food outlet and requires impact assessment. There was also a declaration that the development applied for was not a shopping centre. The Court ordered the Council to proceed with Austexx’s development application in accordance with the declarations.
[13] Declarations to the same effect were made on the applications brought by Lewiac and Hyperdome.
[14] The Council, Hyperdome and Lewiac have all applied, pursuant to s 4.1.56(2) of the Act, for leave to appeal against the declarations and orders.
[15] What is at stake in these proceedings is whether the development application made by Austexx requires “impact assessment” or whether it needs to be assessed only for compliance with the relevant codes. The former process is more rigorous. Austexx would have to advertise its proposal. Hyperdome and Lewiac, and any other interested member of the public, could oppose the application. That is their stated intention should leave be given to appeal and the appeals be allowed.
[16] For its part Austexx seeks leave to appeal against the declaration that the area of about 700 square metres set aside for the sale and consumption of food is not a necessary or ancillary part of the retail showroom development, but is to be regarded as a separate development, a food outlet, with the consequence that it falls to be assessed not by reference to codes but requires “impact assessment”.
[17] If the arguments advanced on behalf of the Council, Hyperdome and Lewiac were accepted the result would be a declaration that the development was not a retail showroom and would require impact assessment. In that event the application for leave to appeal made by Austexx would not need to be considered. Nor would it be necessary to determine whether the Council was right when it categorised the development as a shopping centre. Austexx disputes that categorisation. Neither Hyperdome nor Lewiac support it. Whether or not the proposed development is properly to be regarded as a shopping centre if it is not a retail showroom the application must be assessed on the impact basis and its precise categorisation is immaterial.
[18] Before considering the reasons of the learned primary judge, it is necessary to set out some definitions from the Council’s planning scheme.
[19] Part 13 of the Council’s Planning Scheme is headed ‘Interpretation of Planning Scheme’ and it contains the definition of terms used in the Scheme.
‘Ancillary activities’ are defined as:
‘Activities which are necessarily associated with particular development but are incidental and subordinate to that development.’
A ‘building’ is defined to include any part of a building.
‘Development’ is relevantly defined as:
‘… Any activity involving: … the … use of a building’
which of course would include part of a building.
‘Premises’ are defined as:
‘Any road, land, building or other structure or part thereof or any combination thereof comprising existing or proposed development.’
Section 13.2.2 sets out a number of ‘purpose definitions’. It provides:
‘13.2.2.1The purposes for which development is carried out are identified in Table 13.2.2.1 and defined in this section.
13.2.2.2Unless expressly provided otherwise:
(a) a purpose of development shall not be taken to include other purposes of development separately defined in this section;
‘Local shops’ are defined to be:
‘Premises used for shops with a gross leasable area does not exceed 500 square metres’.
A ‘food outlet’ is defined to be:
‘Premises used for the preparation and sale to the public of food which:
(a) is for immediate consumption other than on the premises; and
(b) includes the provision of ancillary activities for the consumption of such food on:
(i)the premises; or
(ii)an adjacent outdoor eating area …
(c) does not include a restaurant, shop, part of a shopping centre used for a food outlet, or an ancillary activity to premises used for indoor entertainment, outdoor entertainment or public recreation.’
A local shopping centre is a shopping centre where the gross leasable area does not exceed 1200 square metres.
Retail showrooms are:
‘Premises having a gross leasable area of not less than 200 m² used for the display, sale or hire in a predominantly indoor setting of goods of a similar or bulky nature which:
(b) includes, but is not limited to, the display or sale of:
● barbeque supplies and outdoor furniture
● building and construction materials with or without hardware, handyman and tradesmen supplies
● camping, outdoor, sporting and fitness equipment including bicycles and golfing goods and equipment
● curtains and furnishing materials
● domestic fixtures and fittings
● floor coverings and floor and wall tiles
● furniture
● non-portable machinery
● non-portable appliances being washing machines, dishwashers, clothes dryers, refrigerators, hot water systems, air-conditioning systems and the like, with or without portable domestic appliances
● spa and pool supplies and equipment; and
● boats, caravans, motor vehicles, trailers, swimming pools, motorcycles, lawn mowers and garden appliances, and the like where carried on predominantly within a building; and
(b)includes ancillary activities such as:
(i)the storage of goods on the premises; and
(ii)offices for the conduct of administration and accounting; and
(c)excludes a department store, discount department store, variety store, supermarket or the like.’
A shop, by contrast, is:
‘Premises having a gross leasable area not exceeding 200 m² for the display, sale or hire of goods or the provision of personal services to the public which includes ancillary services such as the:
(a)storage of goods sold on the premises; and
(b)conduct of administration and accounting activities on the premises.’
Lastly it is necessary to include the definition of a shopping centre which is:
‘Premises used for a group of shops in association with other purposes of development which:
(a)Function as an integrated unit; and
(b)Contain one or more buildings having a gross leasable area of more than 500 m² …
(c)Comprises separate areas of occupation and other activity areas used in connection therewith where each separate area of occupation were it not part of a shopping centre would be a:-
(i)shop; or
(ii)commercial premises; or
(iii) commercial services; or
(iv) child care centre; or
(v) detached bottle shop; or
(vi) food outlet; or
(vii) health care practice; or
(viii) restaurant; or
(ix) services and trades where each separate area of occupation does not exceed … 200 m²; and
(d)Includes a department store, discount department store, variety store, supermarket, or other similar premises.’
[20] The reasons for judgment of the primary judge set out the background facts which I have recited, noted the definitions of retail showroom and shopping centre and concluded that the proposed development did not constitute a shopping centre. His Honour turned to consider whether it was a retail showroom. He said:
‘16.The definition sets out a number of positive requirements. The gross leasable area of the subject premises is in excess of 15,000 m². There is no problem with the requirement that we are dealing with a proposal having a gross leasable area of not less than 200 m². In argument it was sought to be suggested that areas of the premises are intended to be separately tenanted, and some of these tenant’s tenancies are less than 200 m². I do not have any difficulties with this. The very concept of gross leasable area … contemplates the possibility of separate leases. What is important is that the development here intended is an integrated commercial enterprise put forward as a “retail showroom”. It could not sensibly (be) suggested that a number of separate showrooms are proposed. It is not refuted that the goods are to be offered for sale in a predominantly indoor setting.
- The real dispute regarding the interpretation of the definition arose in respect of the interaction between the introductory paragraph and the sub-paragraph. The grammar is poor … one must attempt to attribute to the definition a sensible and purposeful meaning …
18.The determinative question here appears to be whether these premises are intended for the sale of “goods of a similar or bulky nature” within the meaning of the definition. An understanding of what is intended by the phrase “goods of a similar or bulky nature” and the operation of sub-clause (a) lay at the heart of the dispute in this case.
22.Similar does not of course mean identical, but it does require that the individual items share some common characteristic. I believe it is quite unrealistic to suggest that the relevant characteristic should be confined to the physical property of each item. It is pertinent to remember that … we are working in the world of retailing. In my view, it would be quite sensible to suppose that items could be said to be similar if they could reasonably be expected by the public to be found at a retailing facility of a particular kind.
24.… The court has preferred a common sense approach … the appropriate questions to ask … would be:
- Is a factory outlet a retail facility of a kind with which members of the public are generally familiar?
- Are the goods intended to be offered here (clothing, accessories, footwear, homeware, handbags/luggage) the kind of thing one would expect to find at a factory outlet?
…
I would have no difficulty in answering each of these questions in the affirmative and finding that the goods proposed to be sold … are of a similar nature.’
[21] There were two strands to the reasoning of the primary judge. One was that the premises for the purposes of the development was the whole building, the aggregation of the 80 odd tenancies. The second was that the goods to be sold from the various tenancies would be similar in nature. If either of these conclusions is wrong the judgment cannot stand. The development would not be a retail showroom because:
(a)If the premises are not the whole building but individual tenanted parts some are less than the defined minimum floor area of 200 m² and so cannot be retail showrooms.
(b) If the goods being offered for sale throughout the development are not similar in nature the premises cannot be a retail showroom.
These points must be considered separately.
Goods of a Similar Nature
[22] It is at once apparent that the definition of a retail showroom is ungrammatical but its meaning is, I think, plain enough. A retail showroom is ‘premises having a gross … area of not less than 200 m² used for the … sale … of goods of a similar or bulky nature which:
(a)Includes … the sale of:
- barbeque supplies and outdoor furniture
- building and construction materials …
- camping, outdoor, sporting and fitness equipment including bicycles and golfing goods and equipment
- etc.
- boats, caravans, motor vehicles, trailers, swimming pools, motorcycles, lawn mowers and garden appliances.
(c)Excludes a department store, discount department store, variety store, supermarket or the like.’
[23] The definition means that a retail showroom are premises of the requisite size used for the sale of goods which are similar in nature, or which are bulky. The examples given do not, in my opinion, add to the definition or qualify the requirement that the goods sold must be of similar nature. They are some types of goods which may be sold from a retail showroom. They must, in that event, be similar in nature. The examples do not provide categories of goods which are to be regarded as similar for the purposes of the definition. I would not, for example, regard boats as being goods of a similar nature to lawn mowers or swimming pools, and I do not read the definition as requiring that approach. The last sub-set of items found in sub-paragraph (a) is not a category of ‘similar goods’. It is a listing of types of commodity which may be sold from a retail showroom if the goods within that category are “similar in nature”, as that phrase is to be understood giving the words their ordinary meaning. The examples given appear to be random. They are not to be treated as though the Planning Scheme requires swimming pools and motorcycles to be regarded as goods which are similar in nature.
[24] The requirement that goods be of a similar nature is a requirement that they have some attribute or characteristic such that they can be regarded as similar by reference to everyday experience. The definition in the Planning Scheme contains no indication of the criteria which should be used to determine whether goods are similar in nature. It seems to me that the only appropriate test is one of purpose or functionality. Goods are similar in nature if they serve the same purpose or have the same function. There is obviously some inexactitude in such a test and one should not be too narrow in attributing a function to goods.
I would not on this basis, or indeed any other, regard bicycles and golfing goods as being similar in nature, despite the appearance of both types of commodity in the same sub-set of examples in the definition.
A test which looked to the physical characteristics of the goods themselves, such as size or shape or materials of manufacture, would be too restricted. Some support for the ‘function’ test is found in the examples themselves. They are not descriptions of goods, but of activities or purposes, such as ‘camping equipment’ and ‘furniture’.
A large toy store might qualify as a retail showroom though it sells a wide variety of goods varying with the age and sex of the child for whom the object was purchased. Goods would include dolls and cricket sets as well as computer games. The similarity would come from their function: all are to amuse or entertain the young. Similarly a shop selling golfing equipment might sell hats and shirts in addition to clubs and balls, but the clothing would be of a similar nature because it was to be worn for the purpose of playing golf.
[25] The goods which Austexx proposes would be sold from its development would include both mens and womens clothing, footwear, handbags and luggage, jewellery, cosmetics, glassware and bed linen. The categorisation of the goods preferred by Austexx is that there were only two; clothing and homewares. Even on this restricted categorisation, which is of doubtful validity, the goods are not similar in function or purpose.
[26] The similarity in the goods identified by the primary judge and contended for by Austexx is that they were all ‘clearance goods’ as earlier described and that the goods intended to be sold were all of a kind that the public would expect to find at a factory outlet.
[27] The point as to this type of similarity was made by a retail analyst whose affidavit was filed in support of the application by Austexx. Mr Leyshon said:
‘A similarity between the types of product retailed at direct factory outlets relates to the general attributes of the goods and their pricing structure. For instance, goods retailed at factory outlet centres generally share certain key attributes such as being surplus/out of season stock or goods not sold by specialty stores in traditional shopping centres.
The other characteristic which is common to goods sold in factory outlet stores is that as a general principle the prevailing price of goods is usually at least 30% below similar goods sold in traditional retail centres. That is, across the board, factory outlet centres offer significant savings …’
[28] This is to define goods by reference to the mode of business of the vendor, or the pricing structure of the goods. This, it seems to me, is to pay attention to the manner in which the goods are to be sold rather than the goods themselves. The definition of retail showroom requires the goods to be similar. On this approach all goods sold at the weekend markets which have become familiar are similar in nature. One commonly sees at such places cut flowers, plants, books, compact discs, cheap clothing and jewellery, smaller items of plumbing supplies and light fittings. Despite the great disparity in the goods and the purposes for which they are sold, the test propounded by Austexx and applied by the primary judge would treat them as similar because the public would expect to find them on sale at a market.
[29] In my opinion this is not the similarity in nature which the definition requires. This conclusion is supported by the context in which it appears.
The expression is part of the definition of ‘retail showroom’ but it is not found in the definitions of ‘shop’ or ‘shopping centre’. A ‘retail showroom’ must have a minimum area. It cannot be a department store, discount department store or the like. However, these uses are within the definition of a shopping centre. Retail showrooms may not be part of a shopping centre.
[30] When regard is had to these aspects of the Planning Scheme it is, I think, apparent that the intention to be discerned is that retail showrooms are premises which are larger than a shop, are not part of a shopping centre, will not be or be like a department store or supermarket and will sell either bulky goods or goods of a similar nature. This description suggests that a retail showroom will be a specialised retail store where customers can examine and compare goods which they require for a particular purpose before choosing which to buy, rather than a place to which customers may resort to purchase goods of all sorts.
[31] There is another difficulty in the notion that goods will be similar if sold at a factory outlet. Although Mr Leyshon seemed clear enough in his mind about what would constitute such an outlet it is not a concept recognised or defined in the Council’s Planning Scheme. The evidence shows that Austexx has developed direct factory outlets in Sydney and Melbourne but there is no clear evidence that the concept is known to or understood by the general public in South East Queensland. The point is that a test of similarity which depends upon the expectation of the public as to what they might buy at such an outlet is too uncertain to be of utility.
[32] Accordingly I would conclude that the goods which Austexx proposes should be sold from its development will not be of a similar nature. The development will not therefore be a retail showroom.
Premises
[33] The definition of ‘premises’ in the Planning Scheme does not of itself offer any assistance in the resolution of this problem. It is equivocal. Premises may be the whole building or parts of a building.
[34] It was important to the reasoning of the primary judge that the intended development was ‘an integrated commercial enterprise’. For this reason his Honour thought that the development in question was the whole building. This is not a term, or even a concept, which is found in the definitions in the Planning Scheme. All it means, it appears, is that the various tenancies will be located in the one building and there will be a common landlord who will manage and maintain the building for its own commercial advantage.
[35] The Planning Scheme distinguishes between individual uses, such as food outlets, retail showrooms and shops, and aggregated uses such as local shopping centres, local shops and shopping centres. Section 13.2.2.2 requires the identification of the purpose of a proposed development. The purposes of development are mutually exclusive so long as the developments in question are separately defined in the Planning Scheme. Development, it will be recalled, is any activity involving the use of a building or part of a building. The combination of the requirement found in s. 13.2.2.2 and these definitions is that each use of each part of the building answers the description of development. The development proposed by Austexx is for one building but within that building different parts of varying areas are to be used for separate activities. These activities come within the definition of development and the particular type of development, or purpose, is determined by, inter alia, the area to be occupied by the conduct of the activity.
[36] The consequence of these considerations is that it is not appropriate to regard the occupation of the 15,000 square metre building as one development. The areas into which it is proposed to divide the building will each meet the criteria for particular definitions of development within the Planning Scheme. Some will be shops, some retail showrooms and some food outlets. It follows, in my opinion, that each of those separate areas or tenancies is to be regarded as ‘premises’ for the purposes of controlling development in accordance with the Planning Scheme.
[37] Section 13.2.2.2 of the Planning Scheme requires a determination of whether the aggregation of separately defined activities proposed for the one building is, itself, the subject of a separate purpose definition. If it is not then the premises in which the separate activities are conducted, cannot be regarded as a separate development or whether it is to be regarded as separate developments. If the latter then one cannot regard the building as a whole as being the premises.
[38] The definition of ‘shopping centre’ clearly contemplates the use of premises for ‘a group of shops in association with other purposes of development’. By contrast a ‘retail showroom’ as defined is a single purpose which does not include other, separately defined, purposes of development.
[39] The definition of ‘shopping centre’ draws attention to whether the uses for a proposed development are ‘one integrated commercial enterprise’. No such concept appears in the definition of ‘retail showroom’. It is defined by reference to a particular activity conducted from premises above a minimum area.
[40] These considerations suggest that the premises relevant to the proposed development are the individual tenancies not the building as a whole. They include food outlets and shops, as defined, which cannot be ‘retail showrooms’ within the definition. This follows that the proposed development is not, itself, a retail showroom but a mixture of retail showrooms, shops and food outlets.
[41] It is not therefore ‘code assessable’ in terms of the preliminary approvals.
[42] For these reasons the judgment of the Planning and Environment Court involve errors of law. The court misconstrued the definition of retail showroom and thereby applied an incorrect test in determining whether the development proposed by Austexx was for a retail showroom. Secondly the court failed to appreciate that, properly construed, the Planning Scheme regarded the premises in question as being the individual tenancies. Those errors of law were fundamental to the declarations and orders made on the three applications. Each of the Council, Hyperdome and Lewiac have an interest in the proper determination of the points of law that fall to be considered in the originating applications and the applications for leave to appeal. Accordingly it is appropriate to grant the Council, Hyperdome and Lewiac leave to appeal in their respective applications. The court heard argument on the substantive points raised in the appeals.
[43] These conclusions mean that it is not necessary to consider the cross-applications brought by Austexx. Its point was that space set aside for the sale and consumption of refreshments to its retail customers was a necessary and ancillary part of the retail showroom. As such it contended that it was not a separate development but was part of the retail showroom which could be assessed by reference to the codes. The determination that the development is not a retail showroom and must be ‘impact assessed’ deprives the point of any substance.
[44] The orders I propose are that:
(i)John Clifford Longhurst and QIC Logan Hyperdome Pty Ltd, Lewiac Pty Ltd and ING Real Estate Joondalup B.V., and Logan City Council all be granted leave to appeal in Appeals No. 7676/2003, 7712/2003 and 7749/2003 respectively.
(ii)The orders made by the Planning and Environment Court in each of applications no. 4106, 4642 and 4446 of 2002 should be set aside.
(iii)The cross-applications brought by Austexx Developments Pty Ltd for leave to appeal against the orders made in the three applications should be refused.
(iv)In application 4106 of 2002 there should be an order that the application be dismissed.
In each of applications 4642 and 4446 of 2002 there should be declarations that:
Upon the proper construction of the Planning Scheme for the City of Logan, the development applied for and described in a development application made by Austexx Developments Pty Ltd on 2 September 2002
(a)does not constitute development for the purposes of a ‘retail showroom’
(b)requires ‘impact assessment’ for the purposes of the Integrated Planning Act 1997 (Qld)
(c)may not be approved by the Logan City Council unless Chapter 3 Part 4 of the Integrated Planning Act 1997 (Qld) has been complied with.
(v)Austexx Developments Pty Ltd should pay the costs of and incidental to the applications for leave to appeal and the appeals to be assessed on the standard basis.