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  4. Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council - [2017] QPEC 61

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Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 61

Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council[2017] QPEC 61

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 61

PARTIES:

HARVEST INVESTMENT CO (NO 2) PTY LTD

(Appellant)

v

SUNSHINE COAST REGIONAL COUNCIL

(Respondent)

and

NORTH BUDERIM MARKET PTY LTD

(First Co-Respondent by Election)

and

CHIEF EXECUTIVE, DEPARTMENT OF INFRASTRUCTURE, LOCAL GOVERNMENT AND PLANNING

(Second Co-Respondent by Election)

FILE NO/S:

5071 of 2016

DIVISION:

Planning and Environment Court at Brisbane

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

26 October 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 August 2017 – site inspection and 29 August 2017 – 5 September 2017 – Hearing

JUDGE:

Everson DCJ

ORDER:

The appeal is allowed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal for development permit for a material change of use for a shopping complex

CONFLICT – conflict with superseded planning scheme – whether proposed development conflicts with Maroochy Plan 2000 – whether unacceptable character and visual amenity impacts

PLANNING NEED – whether sufficient need for a full-line supermarket on the site

GROUNDS – whether there are sufficient grounds to justify an approval of the proposed development despite conflicts – whether superseded planning scheme overtaken by events when it ceased to apply – whether it adequately addressed the type of development proposed

Planning Act 2016

Sustainable Planning Act 2009

Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347

Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101

Grosser v The Council of the City of Gold Coast (2001) 117 LGERA 153

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979) 140 CLR 675

Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302; [2013] QPELR 188; [2012] QCA 370

Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474

Weightman v Gold Coast City Council [2003] 2 Qd R 441; [2003] QPELR 43; [2002] QCA 234

COUNSEL:

D.R. Gore QC and M. Williamson for the appellant

C.L. Hughes QC and M.J. Batty for the respondent

SOLICITORS:

Connor O'Meara for the appellant

Sunshine Coast Council Legal Services for the respondent

P & E Law for the first co-respondent by election

HerbertSmith Freehills for the second co-respondent by election

Introduction

  1. [1]
    This is an appeal against the decision of the respondent made on 13 December 2016 to refuse a development application (superseded planning scheme) for a development permit for a material change of use of premises for a shopping complex in respect of land situated at 141 Jones Road Buderim (“the site”).
  1. [2]
    It is alleged by the respondent that the proposed development is in serious conflict with a number of provisions of the superseded planning scheme, Maroochy Plan 2000. Notably, it is asserted that the proposed development is not contemplated for the site, fails to consolidate and maintain the integrity of the Retail and Commercial Centres Hierarchy and gives rise to unacceptable outcomes from a visual amenity perspective. The position of the respondent is supported by the co-respondent by election which is the owner of the shopping centre opposite the site in Jones Road. The second co-respondent by election took no active part in the hearing of the appeal.
  1. [3]
    Conversely, the appellant submits that the proposed development is not in conflict with the superseded planning scheme in circumstances where any literal conflict needs to be balanced by considerations that planning controls discouraging the proposed development were overtaken by events prior to the end of the life of the superseded planning scheme or were incorrect or inappropriate from the beginning. Further, it is submitted that in the event the court finds conflict with the superseded planning scheme there are sufficient grounds to warrant approval of the proposed development.

The site and the surrounding locality

  1. [4]
    The site is located at 141 Jones Road Buderim. It has an area of 1.962 ha.[1]  It is located at the intersection of two significant roads, Maroochydore Road to the north and Jones Road to the east.[2]  Maroochydore Road links the Bruce Highway and Maroochydore and is the main east-west road through the area.[3]  Jones Road links Maroochydore Road with Buderim to the south.[4]  The site has a road frontage of about 130m to Maroochydore Road, which at this location is a limited access dual-carriageway and it also has a frontage of about 95m to Jones Road which at this location contains several lanes.  It is a busy intersection, with traffic lights and an overbridge.[5]  It adjoins an Energex substation to the south and Martins Creek to the west.[6]   It is vacant and covered by low ground cover vegetation with more substantial vegetation along the creek edge.[7]  It does not share a common boundary with any residential uses.[8]
  1. [5]
    The site lies approximately 4km by road to the west of Maroochydore and 13km by road east of Nambour.[9]
  1. [6]
    The North Buderim Shopping Centre is located on the eastern side of Jones Road, directly opposite the site. It has a gross floor area of 2,346m², comprising an IGA supermarket of 1,330m² and nine speciality stores having a total area of 1,016m².[10]  The IGA supermarket is set back from the road frontage behind at grade car parking and very limited landscaping, making it clearly visible from the Jones Road intersection.[11]  A small shopping centre is also located to the immediate east of the North Buderim Shopping Centre, adjoining Pittards Road which intersects with Jones Road at a signalised intersection opposite the southern extent of the road frontage of the site.[12]
  1. [7]
    Further centre activities are located to the north of Maroochydore Road, where Jones Road becomes Main Road. The facilities in this location are known as Kuluin Village, which is located approximately 150m north of the site.[13]  This centre is divided into two components and tenants include a McDonalds restaurant, an early learning centre, a bakery and a small convenience store.[14] It adjoins some residential development.[15]
  1. [8]
    Pursuant to the superseded planning scheme, the site, the North Buderim Shopping Centre and the Kuluin Village centre are all located in the Kuluin/Kunda Park Planning Area No. 8 within the irregularly shaped Kuluin Gateway (Town Centre Frame) Centre Precinct.[16]

The proposed development

  1. [9]
    Following a successful minor change application, the proposed development is now as depicted in Exhibit 21.[17]  The proposed development is for a shopping complex with a gross floor area of 4,904m², comprising a full-line supermarket of 3,688m², three small speciality shops to the south and east of the supermarket with a GFA totalling 999m² and a separate fast food restaurant with a GFA of 217m² in the south-eastern corner of the site adjacent to the Jones Road frontage.  Carparks are provided at grade for 259 vehicles and 6 motorcycles.  Access is to be obtained via a significant intersection at the southeast corner of the site opposite where Jones Road intersects with Pittards Road.

The assessment regime

  1. [10]
    It is uncontroversial that the appeal was filed before the commencement of the Planning Act 2016.  Accordingly, the Sustainable Planning Act 2009 (“SPA”) continues to apply.[18] 
  1. [11]
    As noted above, the application for the proposed development was a development application (superseded planning scheme). Relevantly, s 315(1) of SPA provides:

“315  Code and impact assessment—superseded planning scheme

  1. (1)
     If the application is a development application (superseded planning scheme), the assessment manager must assess and decide the application as if—
  1. (a)
     the application were an application to which the superseded planning scheme applied; and
  1. (b)
     the existing planning scheme was not in force…”[19]
  1. [12]
    Section 495(4)(b) of SPA reinforces this approach, stating that in an appeal against a decision about a development application (superseded planning scheme), the court also must consider all relevant aspects of the appeal “as if the application were made under the superseded planning scheme”[20] and “disregard the planning scheme applying when the application was made.”[21]  Clearly this specific provision takes precedence over the general power of the court to “give weight to any new laws and policies the court considers appropriate”.[22]  To do otherwise would render such a development application futile.  Subject to this constraint, the appeal is by way of hearing anew.[23]
  1. [13]
    The decision of the court must not conflict with the superseded planning scheme unless there are sufficient grounds to justify the proposed development despite the conflict.[24]
  1. [14]
    The term “grounds” is defined in Schedule 3 of SPA in the following terms:

“1.  Grounds means matters of public interest.

  1. Grounds does not include the personal circumstances of an applicant, owner or interested party.”[25]
  1. [15]
    In Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust)[26] the Court of Appeal endorsed the three stage test which had previously been pronounced in Weightman v Gold Coast City Council[27] which requires the court to:

“1.  examine the nature and extent of the conflict;

  1. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
  2. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”[28]

The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.[29]

The disputed issues

  1. [16]
    The disputed issues narrowed considerably in the course of the hearing of the appeal.[30]  The remaining disputed issues may be summarised as follows:
  1. Whether the proposed development conflicts with the superseded planning scheme to the extent that it would compromise the planned hierarchy of centres in the superseded planning scheme;
  2. Whether the proposed development conflicts with more specific provisions of the superseded planning scheme relating to both Planning Area No 8 and the Kuluin Gateway (Town Centre Frame) Precinct;
  3. Whether the proposed development would result in unacceptable character and visual amenity impacts;
  4. Whether there is a need for the proposed development;
  5. Whether the proposed development is inconsistent with the reasonable expectations of residents of the locality; and
  6. Whether there are sufficient grounds to justify the proposed development despite conflicts with the superseded planning scheme. Principally, these are need and that when it ceased to apply in 2014 it had been overtaken by events, or that it did not ever adequately address the type of development proposed.

Relevant provisions of the superseded planning scheme

  1. [17]
    As noted above, the applicable planning scheme is the superseded Maroochy Plan 2000 which was in effect until 20 May 2014.[31]  The use contemplated by the proposed development was relevantly defined in the following terms:

“‘Shopping complex’ means premises, comprising of one or more buildings in the form of an integrated development having a gross floor area of more than 1,000m², established in a coordinated manner, and used for one or more shops, either with or without one or more of the following purposes:

…

  1. (c)
     Fast-food store

…”[32]

  1. [18]
    It is necessary to have regard to the following provisions which give instructions for the interpretation of the superseded planning scheme in circumstances where the proposed development was impact assessable:

“2.2 Explanation of the Way the Shire is Divided for the Purposes of this Planning Scheme

 …

  1. (5)
     Proposals for impact assessable development will also be assessed against the Strategic Plan (Volume 2).  The detailed local planning provisions in Volume 3, are intended to be based upon and reflective of the general principles in the Strategic Plan.  However, it is the Planning Area Provisions in Volume 3 which represent Council’s specific planning intent for the relevant localities.
  1. (6)
     Where there is no direct inconsistency between Volumes 2 and 3, but merely different or additional outcomes or requirements indicated, Volume 3 constitutes the primary basis for assessment, but all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme.  If the different statements in Volumes 2 and 3 are inconsistent, statements in Volume 3 prevail over inconsistent statements in Volume 2.

 …

 It is an incorrect use of the Strategic Plan, and an incorrect interpretation of this Planning Scheme, to rely on anything in the Strategic Plan to support or justify as being consistent with the Planning Scheme, an outcome which is contrary to the Planning Area provisions.”[33]

  1. [19]
    There is a Retail and Commercial Centres Hierarchy, which relevantly prescribes a Principal Activity Centre at the top and Local Centres at the bottom.[34]  Relevantly it is stated:

“4.3.1 Principal Activity Centre

  • the Principal Activity Centre of Maroochydore is to be promoted as the principal business centre of the Shire and the Sunshine Coast Sub-region;

…

  • the highest order of retail, commercial, service and administration facilities are to be established within the Maroochydore PAC Master Planned Area, with higher order retailing, including any future national department stores to be located in the Maroochydore Central Precinct (Master Plan Unit);

…

4.3.2 Major Activity Centres

  • the Major Activity Centres at Nambour and Sippy Downs will complement the Principal Activity Centre…

 

4.3.3 Village Centres

  • these centres provide a range of retail and commercial facilities satisfying the needs of their host towns.

…

  • the total gross floor area for commercial uses in Village centres may consist of no more than 1000m² Gross floor area on any single development site;

…

4.3.4 Local Centres

  …

  • Local centres, which may consist of up to 1000m² of gross floor area for commercial uses, may comprise a small scale supermarket, convenience shops and some comparison shopping to satisfy the day-to-day needs of discrete residential areas…

…

  • Local centres may also include, in addition to the commercial facilities, other facilities which satisfy the needs of the relevant local community, such as community services and recreational facilities.  The total gross floor area of a Local centre which includes such facilities may be up to 3,000m² (including the gross floor area of commercial uses which must not exceed 1,000m²);

…

  • Local centres are not intended to be established as, or to expand into, higher order centres comprising or containing a standard size or larger supermarket.  Any such facilities are defined (in Volume 1) to be a Shopping complex, and it is intended that such facilities be located only within District centres or higher order centres within the hierarchy.”[35]
  1. [20]
    Following on from this are objectives and implementation measures which contain a reference to District Centres, a category not specifically defined in the above hierarchy:

“4.4.1 To Consolidate and Maintain the Integrity of the Retail and Commercial Centres Hierarchy

 The maintenance of the Retail and Commercial Centres 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.

 …

District Centres

  1. (19)
     District level centres may be allowed if it can be established that the existence of such a centre is necessary to cater for unsatisfied demand or to allow systematic development for a particular area.”[36]
  1. [21]
    Significantly it is also stated with respect to Local Centres:

“Local Centres

  1. (26)
     In most cases, sufficient land has already been allocated for Local centres at the sites identified in the Planning Area provisions, either by designation as a Local centre Precinct or by site-specific identification in the text of the provisions.  The Council does not intend to approve applications to establish Local centres at other locations, to expand Local centres beyond their intended scale as set out … above, or to establish retail or commercial development beyond the scale of a Local centre at any locations except those designated in the Planning Area provisions for higher order centres.”[37]
  1. [22]
    General statements of intent for precinct classes are provided in Volume 3 of the superseded planning scheme. Relevantly, it is stated:

“(2) Town Centre Frame

These precincts are intended to adjoin the Town Centres’ Core areas and provide for types of uses and buildings which complement each Core area’s functions and environment.  These Precincts are expected to have environments which are more vehicle-oriented than the Core Precincts.

The establishment of a wide range of office, service industrial and community uses is primarily intended for land in these Precincts.  Non-residential premises should be of a lesser scale and intensity than that in the Centres’ Core Precincts.  Uses requiring larger site areas, generating higher volumes of traffic and otherwise not needing a central location (such as showrooms, service stations, restaurants with drive-through facilities and the like) are considered more suited to sites in these Precincts.

…

(4) Local Centre

These Precincts are intended to provide for shopping, personal service and community facilities at convenient locations to meet the day to day local needs of residents in each neighbourhood.  Preferred locations for Local centres are at the centre of or at a gateway/entry to neighbourhoods (sic).

Such centres are intended to remain small, having a gross floor area for commercial uses of no more than 1,000m².  They must be designed and developed in accordance with the relevant code provisions.  They may contain a small supermarket (consistent with the floor space size limit for the centre), but higher order retail uses, such as standard size (or larger) supermarkets, showrooms and shopping complexes are not intended to be approved.  These facilities are intended to be located in higher order centres within the retail and commercial hierarchy set out in the strategic plan.

Local centre Precincts are also the preferred locations for local non-retail facilities which satisfy the needs of the relevant local community, such as community services and recreational facilities.  The total gross floor area of a Local centre which includes such facilities may be up to 3,000m² (including the gross floor area of commercial uses which must not exceed 1,000m²).

…”[38]

  1. [23]
    There are also relevant statements of desired character for Planning Area No. 8 – Kuluin/Kunda Park. These are:

“3.8.3 Key Character Elements

…

  1. (2)
    Design Intent

…

  1. (c)
     Any new premises in the commercial centre at the intersection of Main and Maroochydore Roads will be required to demonstrate satisfactory access arrangements and effective buffering to surrounding residential land.  This centre is not intended as a primary shopping area.”[39]
  1. [24]
    As the site is within the Kuluin Gateway (Town Centre Frame) Precinct, there are specific provisions of the Statements of Desired Precinct Character which also apply. Relevantly, it is stated that preferred uses within these precincts are those referred to in the Supplementary Table of Development Assessment which does not include a reference to a shopping complex.[40] 
  1. [25]
    As noted above, the respondent also raises unacceptable character and visual amenity impacts as a consequence of the proposed development. The following general provisions of the Strategic Plan are identified:

“4.4.5 To Facilitate High Standards of Urban Design in Retail and Commercial Centres

…

Implementation

…

  1. (2)
    Buildings are to respect the street level scale of adjoining premises.
  1. (3)
    Development of new premises is to demonstrate street level design cohesion with that on adjoining property and is to provide for similar streetscaping treatment.

…

  1. (6)
     In the Principal Activity Centre, Major Activity Centre, and Town and Village Centres, parking and vehicular manoeuvring areas and accesses are to be shared wherever possible and landscaped to minimise their visual impacts on surrounding areas and the buildings on the site shall be designed to provide a focus to an external road which is not undermined by establishment of the car parking areas.

…

  1. (8)
     Premises are to present a generally continuous shop-front appearance at street level unless it can be demonstrated that an alternative proposal has urban design merit in keeping with the intent of the objective.”[41]
  1. [26]
    The following provisions of the more specific statements of desired precinct character for the Kuliun Gateway (Town Centre Frame) Precinct are also identified:

“3.8.4 Statements of Desired Precinct Character

(1)Kuluin Gateway

…

Intent

… It is intended that such uses be consolidated within the Precinct in low rise well landscaped premises...

Landscape and Built Form

New development in the Precinct should achieve high standards of siting, design and landscaping befitting the visual prominence of the site…

…

Buildings should not exceed a height of two storeys (and no more than 8.5 m).”[42]

Need

  1. [27]
    The appellant relies upon planning need to two respects. Firstly, in arguing that the proposed development is justified as constituting an additional District Centre, the existence of which is necessary to cater for unsatisfied demand for the proposed development. Secondly, the appellant relies upon it as a ground to overcome any conflicts with the superseded planning scheme. The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor:

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met...”[43]

  1. [28]
    The need evidence before me focused upon two integers. Firstly, the extent of the need for the proposed development and secondly, the economic impacts of it upon existing centres. So far as the latter is concerned, it is important to note the limited extent to which this is relevant, as explained by the High Court in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor:

“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.”[44]

  1. [29]
    Unsurprisingly given the relative size and importance of the supermarket in the proposed development, the focus of the economic evidence was on it. Coles is the proposed operator and evidence was given by Mr Zeller, the state property manager for Coles, of the desirability of the site for the proposed supermarket. He stated:

“The land is viewed by Coles as an excellent location for a full-line supermarket because it is well located in the road network and readily accessible to an existing trade area population of about 12,000 people who presently do not have convenient access to a full-line supermarket.”[45]

  1. [30]
    Mr Zeller also gave evidence of consumer trends and, in particular, that people are shopping more frequently than the traditional weekly or fortnightly shopping excursion and demanding a wider variety of products and a greater range of choice, including seeking different sizes of the same product.[46]
  1. [31]
    Three retail economists gave evidence, Mr Duane on behalf of the appellant, Mr McCracken on behalf of the respondent and Mr Brown on behalf of the first co-respondent by election. The primary and secondary trade areas identified by Mr Duane were more extensive than those identified by Mr McCracken and Mr Brown.[47]  However on either analysis the proposed development was centrally located to serve the identified areas.  Mr Duane calculates the population of the main trade area, which incorporated both the primary and secondary trade areas, as being currently 12,346 people and likely to increase to 15,300 people by 2031.[48]  Conversely, Mr McCracken and Mr Brown calculate the population of the trade area to be 11,638 people at present,[49] with only moderate growth likely and forecast to be 12,408 people by 2031.[50]  It is agreed by all three experts that on average there are approximately 9,000 people per full-line supermarket nationally.[51]
  1. [32]
    I accept that there may be a slight overstatement of demand for the proposed development as a consequence of an increase in nursing home residents west of the proposed development who, despite not necessarily being capable of doing their own shopping, are nonetheless included as part of the estimated resident population. However the significant difference in approach between Mr Duane on one hand and Mr McCracken and Mr Brown on the other, is the exclusion of the primary east sector, comprising land designated for further residential development to the south of the Sunshine Motorway from the primary trade area identified by Mr McCracken and Mr Brown.[52]  The growth in this area will be driven by the approved Palmyra Estate.  When completed it will be linked with the Maroochydore CBA, which contains four supermarkets, including three full-line supermarkets via an underpass running beneath the Sunshine Motorway.[53]  Residents of this area will have convenient access to the proposed development via Wises Road that ultimately becomes Pittards Road and intersects with Jones Road opposite the proposed development.  This route requires residents to negotiate only one set of traffic signals to access the proposed development, as opposed to the alternative route to full-line supermarkets in Maroochydore which will involve the negotiation of several signalised intersections.[54]  While Mr Duane is of the view that 40% of these future residents will choose to shop at the proposed development or the IGA supermarket across the road from it, Mr McCracken and Mr Brown do not allow any specific allocation for residents from this area utilising the proposed development.  They are of the view that their relevance is so minor that they are merely included as part of the general 10% of likely custom which is external to the trade areas identified by them.[55]  In circumstances where the Maroochydore CBA is already “highly trafficked”[56] and will just get “bigger and busier”,[57] I prefer the analysis of Mr Duane in this regard. It is reasonable to conclude that up to 40% of the future residents of his primary east trade area are likely to utilise the proposed development for supermarket shopping, given its proximity and the direct and less congested access to the proposed development via Wises Road.
  1. [33]
    I also prefer the approach of Mr Duane in calculating the likelihood of people to the west of the proposed development choosing to shop at supermarkets further away in Nambour in preference to the proposed development. I am of the view that both Mr McCracken and Mr Brown have overestimated the likelihood of residents in the western parts of the trade areas choosing to travel to Nambour to shop at a supermarket rather than the closer and readily accessible proposed development. I accept the evidence of Mr Duane and Mr Zeller that there is a difference between a full-line supermarket and a smaller supermarket. Even if the nearby Woolworths supermarket at Buderim Marketplace is capable of functioning as such, it would still not offer the same range of brands and sizing of brands which a full-line supermarket offers.[58] I accept the force of Mr Duane’s evidence which is summarised in the following terms:

“3.9 …I make the following points in relation to need for a full-line supermarket to serve the subject catchment:

i. The trade area population level is currently in-excess of 12,500 persons and is projected to increase to over 15,300 persons including 10,700 persons in the primary west sector.  These population levels can clearly sustain a full-line supermarket (at one store for every 9,000 persons) and such a store is needed to serve the requirements of modern consumers.

ii. Modern consumers expect a full range of goods available in convenient locations in one stop destinations.  A modern supermarket provides in-excess of 30,000 store keeping units (SKUs) including departments such as bakery, deli, butcher, seafood, fresh produce, dry groceries, dairy and the like.

iii. There are no other full-line supermarkets within the defined trade area with the IGA at North Buderim at 1,300 sq.m, well below a modern full-line supermarket of at least 3,200 sq.m.  This store offers a much more limited range of goods as compared with the full-line store operated by Coles.

3.10 The closet supermarket facility outside the trade area at Buderim is less than 2,500 sq.m and not considered a full-line store.  The next closest full-line supermarket facilities are provided at Maroochydore, again where I have indicated it is inconvenient for a supermarket shop…In my view, Nambour does not represent an appropriate location for residents of the defined trade area to undertake their supermarket shop, given the distance for the majority of these residents of more than 9 km away.”[59]

  1. [34]
    While I accept that there will be significant impacts upon the North Buderim IGA, I find the extent of the impacts identified by Mr Brown exaggerated and I prefer the evidence of Mr Duane and Mr McCracken that, even if this consideration is relevant on the test set out in Gantidis above at [28], it will survive and ultimately compete with the proposed development.[60]  In forming this view, I take into account the fact that the North Buderim IGA is currently trading at almost double the figure required for it to be economically viable,[61] and that the Woolworths supermarket at Buderim Marketplace is currently trading 25% better than an average supermarket in Australia.[62]  This information alone suggests a not inconsequential need for the proposed development.
  1. [35]
    Taking all of these matters into account, I prefer the evidence of Mr Duane to that of Mr McCracken and Mr Brown that there is “clear economic and community need” for the proposed development which is appropriately located to serve the current and future residents of the identified main trade area.[63]

Visual amenity

  1. [36]
    The only specific amenity evidence called was evidence from experts in visual amenity, Mr Chenoweth who gave evidence on behalf of the appellant and Mr McGowan who gave evidence on behalf of the respondent. As a starting point, both experts agreed that this site “has a limited zone of visual influence”.[64]  Furthermore, both experts agreed that the proposed development is “unlikely to generate adverse impacts on nearby residential visual amenity” given the context of the proposed development and “because nearby residents are generally well separated or screened from the subject land”.[65]  Curiously the respondent nonetheless maintains that grounds based on visual amenity evidence justify a refusal of the development application.  It relies firstly upon general provisions of the Strategic Plan contained in s 4.4.5 quoted above.  It is submitted that the proposed development will not demonstrate street level design cohesion,[66] that it will not be designed to provide a focus to an external road which is not undermined by the establishment of car parking areas[67] and that it will not present a generally continuous shopfront appearance at street level.[68]  The alleged shortcomings of the proposed development in this regard completely ignore the topography of the site in circumstances where there is a significant drop off in the order of 4m between Jones Road and ground level.  The nominating of such conflicts ignores the presentation of the North Buderim Shopping Centre on the opposite side of Jones Road and an existing development approval for the site,[69] which acknowledges similar constraints.
  1. [37]
    The respondent also raises conflicts with statements of desired precinct character for the Kuluin Gateway Town Centre Frame Precinct at s 3.8.4 of the superseded planning scheme, which relevantly require high standards of landscaping and that buildings should not exceed a height of two storeys and no more than 8.5m.[70]  Although the visual amenity experts agreed that the proposed development would extend to 11.5m above existing ground level at the north-western corner or the supermarket building,[71] Mr McGowan conceded that this was of no consequence from a visual amenity perspective.[72]
  1. [38]
    So far as general visual amenity and landscaping considerations are concerned, I accept without reservation the evidence of Mr Chenoweth that there is sufficient scope to satisfactorily landscape the proposed development. Accordingly, any conflicts with the planning scheme from an amenity perspective are minor at best.

Is the proposed development in conflict with the superseded planning scheme?

  1. [39]
    The first issue which arises is whether the proposed development is in conflict with the planned hierarchy of centres. As originally drafted, the superseded planning scheme contemplated a District Centre at Sippy Downs and there was no 1,000m² GFA limit for commercial uses in Village Centres and Local Centres.[73]  After Sippy Downs was identified in the Southeast Queensland Regional Plan 2005 as a Major Activity Centre, the planning scheme was amended to reflect this.[74]
  1. [40]
    Following a number of approvals for shopping centres, the superseded planning scheme was amended, placing the 1,000m² GFA cap on commercial development in Village Centres and Local Centres.[75]  These amendments left the superseded planning scheme without any nominated District Centres, but it still made provision for them “if it can be established that the existence of such a centre is necessary to cater for unsatisfied demand…”[76]  The appellant argues firstly that the Kuluin Gateway (Town Centre Frame) Precinct should be characterised as a District Centre as the size of the North Buderim Shopping Centre and other smaller shopping centres within it exceed what is contemplated for a Local Centre.  Alternately, it is submitted that the proposed development, if approved, will have the effect of creating a District Centre within this precinct.  In these circumstances, it is submitted that there is no conflict with the superseded planning scheme, as the proposed development is merely creating a District Centre to cater for unsatisfied demand.
  1. [41]
    These arguments ignore the fact that the development application in respect of the proposed development is for a shopping complex, not a District Centre. The same can be said of past applications in respect of the North Buderim Shopping Centre. Notably there is no mapping of this area as a District Centre, or even a Local Centre for that matter.[77]  I accept the reasoning of Rackemann DCJ when considering the same site in a different context in Garyf Pty Ltd v Maroochy Shire Council & Ors where he stated that:

“I accept the submission of Mr Hughes SC, that although the planning scheme admits of the prospect of district centres in as yet unidentified locations, it does not positively encourage them. The planning scheme does not treat the development of new district level centres as a necessary part of the planned hierarchy, although such centres may become a legitimate part of the hierarchy.”[78]

  1. [42]
    In my view, in the absence of a specific designation of the site as a District Centre in the superseded planning scheme, there is no basis for submitting that the site is effectively already part of a District Centre or that approval of the proposed development is akin to approving the creation of a District Centre.
  1. [43]
    So far as the more detailed planning provisions are concerned, the proposed development is not a preferred or acceptable use in the Kuluin Gateway Town Centre Frame Precinct. It is also alleged that the site comes within the exclusion contemplated by the following passage:

“Any new premises in the commercial centre at the intersection of Main and Maroochydore Roads will be required to demonstrate satisfactory access arrangements and effective buffering to surrounding residential land.  This centre is not intended as a primary shopping area.”[79]

Although in Garyf Pty Ltd v Maroochy Shire Council, parties proceeded on the assumption that this provision “applies to all corners of the intersection, including the south-western corner of the intersection where the subject land is located”,[80] there is no such common ground before me.  Jones Road becomes Main Road on the opposite side of Maroochydore Road, where there is a different centre, which is described as Kuluin Village. As noted above, unlike this centre the site does not present with surrounding residential land. In my view, it is not the intention of the superseded planning scheme to include the site within this description and the obvious amenity basis for it does not apply to the site. 

  1. [44]
    Nonetheless, there is a significant conflict between the proposed development and the nominated preferred uses for the Kuluin Gateway Town Centre Frame Precinct where a shopping complex is not contemplated, and my finding as to the applicability of the above provision does not have a significant bearing on the level of this conflict. The proposed development is also in significant conflict with the planned hierarchy of centres in the superseded planning scheme as this use is not contemplated for land not within the Principal Activity Centre of Maroochydore or the Major Activity Centres at Nambour and Sippy Downs.
  1. [45]
    Curiously, the respondent also asserts that the proposed development is inconsistent with the reasonable expectations of the community. This strikes me as an unusual argument to run in the context of a development application superseded planning scheme. This is particularly the case where throughout the life of the superseded planning scheme, numerous supermarkets were approved in circumstances which do not accord with the Retail and Commercial Centres Strategy current at the end of the scheme and both the North Buderim IGA opposite the site and the Coles Supermarket at Nambour were approved pursuant to this regime but not in conformity with it.[81]  In the context of the proposed development I accept the view expressed by Mr Adamson, the town planner engaged by the first co-respondent by election who stated that if there was a sufficient need for the proposed development, it would be in line with community expectations.  Having already found, in accordance with the evidence of Mr Duane, that there is a clear need for the proposed development, I therefore conclude that it is consistent with the reasonable expectations of residents of the area.

Conflict and grounds

  1. [46]
    The appellant submits that in the event I find there is conflict with the superseded planning scheme, there are sufficient grounds to justify approving the application notwithstanding the conflict. The first of these grounds is that the superseded planning scheme has been overtaken by events and is not soundly based. In Grosser v The Council of the City of Gold Coast, White J noted:

“It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government had itself departed from that intent or that the subject land has been given a designation that was and remained invalid.”[82]

  1. [47]
    As noted above, the site is located within the Kuluin Gateway Town Centre Frame Precinct. Curiously, despite Town Centre Frame Precincts being “intended to adjoin the Town Centres’ Core Areas that provide for the types of uses and buildings that complement each Core Area’s functions and environment”, there is no corresponding Town Centre Core. Both Mr Vann, the town planner who gave evidence on behalf of the appellant and Mr Perkins, the town planner who gave evidence on behalf of the respondent, described this as “unusual”.[83]  I find it bizarre. 
  1. [48]
    Further, despite the amendments of the superseded planning scheme restricting opportunities to develop a shopping complex, following a plethora of supermarkets being approved in designated local centres and village centres, the respondent permitted the North Buderim Shopping Centre to expand to a total GFA of 2,346m², approving a 631m² extension of the IGA as recently as 5 December 2013 in circumstances where the application was lodged on 20 May 2013 pursuant to the superseded planning scheme.[84]  The GFA of the North Buderim Shopping Centre therefore significantly exceeds what is contemplated for a Local Centre.  Against this backdrop, I am of the view that the designation of the precinct as a Town Centre Frame Precinct without an accompanying Town Centre Core was invalid.  Furthermore, in permitting a prosperous retail centre to emerge within it, the designation of the precinct was overtaken by events. 
  1. [49]
    The appellant also relies upon the need for the proposed development which can be met on the site in circumstances where there will be an absence of unacceptable amenity impacts.[85]  In this regard, as noted above, I accept the evidence of Mr Duane that the need is clear and significant. Even based on the smaller primary trade area identified by Mr McCracken and Mr Brown there is a significant need for the proposed development.  Pursuant to the Retail and Commercial Centres Hierarchy strategy in Volume 2 and the relevant provisions in Volume 3 of the superseded planning scheme, there is no prospect of the need for the proposed development being met in any location other than in the Principal Activity Centre of Maroochydore (which is becoming increasingly congested) or in the more distant Major Activity Centre at Nambour.[86] This is the case despite the site being centrally located to fulfil this need and otherwise suitable. 
  1. [50]
    All of these grounds are relevant to the conflicts with the superseded planning scheme which arise as a consequence of the lack of support for the proposed development in the general intent for the Town Centre Frame Precinct[87] and more particularly in the specific provisions relating to the Kuluin Gateway Town Centre Frame Precinct which does not contemplate a shopping complex use.  For the sake of completeness, there also is a minor conflict with various provisions of the Strategic Plan concerning visual amenity and character,[88] which cannot be complied with because of the topography of the site and the height requirement in the Kuluin Gateway Town Centre Frame character provisions, in respect of which there is a minor exceedance.  In my view, these conflicts can be justified on the grounds referred to above.  The need for the proposed development in the context of the invalid designation of the precinct and the existing approved retail uses within it are, on balance, sufficient to justify approving the proposed development notwithstanding the conflicts. Even without the other grounds the need for the proposed development is sufficient to justify approval of it notwithstanding the identified conflicts with the superseded planning scheme.

Conclusion

  1. [51]
    The planning grounds in favour of the proposed development as a whole are, on balance, sufficient to justify approving it notwithstanding the identified conflicts with the superseded planning scheme. The appeal is allowed. I adjourn the matter to enable the parties to negotiate appropriate conditions of approval.

Footnotes

[1]  Exhibit 8, [2.1.1].

[2]  Exhibit 4, [2.2].

[3]  Exhibit 5, [1.2].

[4]  Exhibit 1, 1.

[5]  Exhibit 8, [2.1.3].

[6]  Exhibit 1, 1.

[7]  Exhibit 8, [2.1.2].

[8]  Exhibit 1, 1.

[9]  Exhibit 8, [2.2.1].

[10]  Exhibit 8, [2.2.4].

[11]  Exhibit 4, 51.

[12]  Exhibit 8, [2.2.5] and Exhibit 1, 1.

[13]  Exhibit 8, [2.2.8].

[14]  Ibid [2.2.10].

[15]  Ibid [2.2.2], Fig 2.

[16]  Exhibit 1, 26.

[17]  T3-57, ll 10-15.

[18]Planning Act 2016 (Qld) s 311.

[19]Sustainable Planning Act 2009 (Qld) s 315.

[20]  Ibid s 495(4)(b)(i).

[21]  Ibid s 495(4)(b)(ii).

[22]  Ibid s 495(2)(a).

[23]  Ibid s 495(1).

[24]  Ibid s 326.

[25]  Ibid sch 3.

[26]  [2013] 2 Qd R 302; [2013] QPELR 188; [2012] QCA 370.

[27]  [2003] 2 Qd R 441; [2003] QPELR 43; [2002] QCA 234.

[28]Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302, 462 [18]. 

[29]Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474, 483.

[30]  Exhibit 36 as modified by the written submissions on behalf of the respondent; T5-36 ll 10-30.

[31]  Exhibit 8, [4.1.1].

[32]  Exhibit 3, 15.

[33]  Exhibit 3, B.

[34]  I have excluded Tourist Centres as they are not relevant to this appeal. Exhibit 3, 48.

[35]  Exhibit 3, 47-48.

[36]  Ibid 48-49.

[37]  Ibid 50.

[38]  Ibid 60G-60H.

[39]  Ibid 126.

[40]  Ibid 127, 29.

[41]  Ibid 52.

[42]  Ibid 127.

[43]  [2003] QPELR 414, 418 [21].

[44]  (1979) 140 CLR 675, 687.

[45]  Exhibit 12, 6, [17].

[46]  Ibid 3-4 [9].

[47]  Exhibit 7 26-27.

[48]  Exhibit FG1 [11].

[49]  Ibid [14].

[50]  Exhibit 7 [59], Table 3.2; Exhibit FG1, [16].

[51]  Exhibit 7, [86].

[52]  Exhibit 1 27-28.

[53]  Exhibit 7 23 [47].

[54]  Exhibit 1, 1-2.

[55]  T3-43 ll 10-20; T4-3 ll 1-2.

[56]  T2-84 ll 10-15.

[57]  T3-44 ll 35-40; T4-7 ll 15-16.

[58]  T2-78 ll 15-25.

[59]  Exhibit 10, paras 3.9 and 3.10.

[60]  Exhibit 10, para 4.9 and T3-65 ll 25-30.

[61]  T1-7 ll 15-30 (Restricted Transcript).

[62]  T4-10 and T4-11.

[63]  Exhibit 7, 75 [158].

[64]  Exhibit 4, 3 [2.5].

[65]  Ibid [5.5].

[66]  Exhibit 3, 52, s 4.4.5(3).

[67]  Ibid s 4.5.5(6).

[68]  Ibid s 4.4.5(8).

[69]  Exhibit 4, 42.

[70]  Exhibit 3, 127.

[71]  Exhibit 4, [3.2].

[72]  T2-46 ll 5-10.

[73]  Exhibit 8, Attachment 5.

[74]  Exhibit 8, [4.2.9]; Exhibit 3, 47.

[75]  Exhibit 8, Attachment 6; Agreed Supplementary Information.

[76]  Exhibit 3, 49.

[77]  T4-52 ll 35-45.

[78]  [2008] QPEC 101, [22].

[79]  Exhibit 3, 126.

[80]  [2008] QPEC 101, [41].

[81]  Exhibit 8, Attachment 6; Agreed Supplementary Information.

[82]  (2001) 117 LGERA 153, 165.

[83]  T4-29 ll 10-15 and T5-27 ll 5-10. 

[84]  Exhibit 8, Attachment 6.

[85]Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 347, 357.

[86]  The Major Activity Centre at Sippy Downs was not considered as a likely location to meet this need by the relevant experts: Exhibit 8.

[87]  Exhibit 3 60G.

[88]  Exhibit 3 52. 

Close

Editorial Notes

  • Published Case Name:

    Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council & Ors

  • Shortened Case Name:

    Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council

  • MNC:

    [2017] QPEC 61

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    26 Oct 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Arksmead Pty Ltd v Council of the City of Gold Coast[2001] 1 Qd R 347; [2000] QCA 60
2 citations
Jump To
Cite 1 - [2001] 1 Qd R 347
Cite 2 - [2001] 1 Qd R 347
Friend v Brisbane City Council & BT Hotels and Property Group [2013] QPELR 188
2 citations
Jump To
Cite 1 - [2013] QPELR 188
Cite 2 - [2013] QPELR 188
Garyf Pty Ltd v Maroochy Shire Council [2008] QPEC 101
3 citations
Jump To
Cite 1 - [2008] QPEC 101
Cite 2 - [2008] QPEC 101
Cite 3 - [2008] QPEC 101
Grosser v Council of Gold Coast City (2001) 117 LGERA 153
2 citations
Jump To
Cite 1 - (2001) 117 LGERA 153
Cite 2 - (2001) 117 LGERA 153
Isgro v Gold Coast City Council (2003) QPELR 414
2 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675
2 citations
Jump To
Cite 1 - (1979) 140 CLR 675
Cite 2 - (1979) 140 CLR 675
Lockyer Valley Regional Council v Westlink Pty Ltd[2013] 2 Qd R 302; [2012] QCA 370
5 citations
Jump To
Cite 1 - [2012] QCA 370
Cite 2 - [2012] QCA 370
Cite 3 - [2013] 2 Qd R 302
Cite 4 - [2013] 2 Qd R 302
Cite 5 - [2013] 2 Qd R 302
Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474
2 citations
Jump To
Cite 1 - [2016] QPELR 474
Cite 2 - [2016] QPELR 474
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
4 citations
Jump To
Cite 1 - [2002] QCA 234
Cite 2 - [2002] QCA 234
Cite 3 - [2003] 2 Qd R 441
Cite 4 - [2003] 2 Qd R 441
Weightman v Gold Coast City Council [ (2003) QPELR 43
2 citations
Jump To
Cite 1 - (2003) QPELR 43
Cite 2 - (2003) QPELR 43

Cases Citing

Case NameFull CitationFrequency
Bunnings Group Ltd v Sunshine Coast Regional Council [2018] QPEC 422 citations
Bunnings Group Ltd v Sunshine Coast Regional Council [2019] QCA 2521 citation
1

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