Bunnings Group Ltd v Sunshine Coast Regional Council
[2018] QPEC 42
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- Unreported Judgment
- Appeal Determined (QCA)
- Bunnings Group Ltd v Sunshine Coast Regional Council[2018] QPEC 42
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Bunnings Group Ltd v Sunshine Coast Regional Council[2018] QPEC 42
Bunnings Group Ltd v Sunshine Coast Regional Council[2018] QPEC 42
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Bunnings Group Ltd v Sunshine Coast Regional Council & Ors [2018] QPEC 042 | ||
PARTIES: | In the Planning and Environment Court Held at: Brisbane BUNNINGS GROUP LIMITED ACN 008 672 179 And SUNSHINE COAST REGIONAL COUNCIL And RAYMOND BARBER And BRENNAN CAROLAN And JENEANE CAROLAN And COOLUM RESIDENTS ASSOCIATION INC And DEVELOPMENT WATCH INC And CAROL GOODWILLIE And AMY-ROSE WEST And MALCOLM CHANDLER And DEBORAH MORAN In the Planning and Environment Court Held at: Brisbane BUNNINGS GROUP LIMITED ACN 008 672 179 And SUNSHINE COAST REGIONAL COUNCIL And DON CAROLAN And SUSAN CAROLAN And COOLUM RESIDENTS ASSOCIATION INC And DEVELOPMENT WATCH INC And DIANE GOODWILLIE And RICHARD JAMES KOERNER | Appeal No. 2838 of 2016 Appellant Respondent 1st Co-Respondent by Election 2nd Co-Respondent by Election 3rd Co-Respondent by Election 4th Co-Respondent by Election 5th Co-Respondent by Election 6th Co-Respondent by Election 7th Co-Respondent by Election 8th Co-Respondent by Election 9th Co-Respondent by Election Appeal No. 4368 of 2016 Appellant Respondent 1st Co-Respondent by Election 2nd Co-Respondent by Election 3rd Co-Respondent by Election 4th Co-Respondent by Election 5th Co-Respondent by Election 6th Co- Respondent by Election |
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FILE NO/S: | Appeals 2838 and 4368 of 2016 |
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DIVISION: | Planning and Environment Court |
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PROCEEDING: | Appeals |
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ORIGINATING COURT: | Planning and Environment Court, Brisbane |
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DELIVERED ON: | 14 September 2018 |
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DELIVERED AT: | Brisbane |
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HEARING DATE: | 20–27 and 29–31 August 2018 and 7 September 2018 |
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JUDGE: | Everson DCJ |
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ORDER: | The appeals are dismissed |
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CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeals against refusals – refusals of development applications for a material change of use of premises to establish a Bunnings Warehouse CONFLICT – conflict with the superseded planning scheme – whether proposed developments conflict with the superseded planning scheme PLANNING NEED – whether there is a need for a Bunnings Warehouse at Coolum Beach GROUNDS – whether there are sufficient grounds to justify an approval of a Bunnings Warehouse on the land despite the conflicts |
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LEGISLATION: | Planning Act 2016 (Qld) s 311 Sustainable Planning Act 2009 (Qld) ss 314, 315, 326, 493, 495, sch 3 |
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CASES: | Bell v Brisbane City Council & Ors Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QPELR 400 Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QCA 351 Grosser v Council of Gold Coast (2001) 117 LGERA 153 Harvest Investment Co (No.2) Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 61 Isgro v Gold Coast City Council & Anor [2003] QPELR 414 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211 Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2012] QCA 370 Luke v Maroochydore Shire Council [2003] QPELR 447 Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474 Weightman v Gold Coast City Council [2002] QCA 234 Zappala Family Co v Brisbane City Council [2014] QCA 147 |
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COUNSEL: | D.R Gore QC and B.D Job QC for the appellant C.L Hughes QC and M Batty for the respondent and P.E Hack QC for the co-respondents by election |
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SOLICITORS: | Corrs Chambers Westgarth for the Appellant Sunshine Coast Council Legal Services for the Respondent and Ray Barber Solicitor for the co-respondents by election |
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Introduction
- [1]These are appeals against the decisions of the respondent to refuse two separate development applications for development permits for a material change of use of premises to establish a Bunnings Warehouse together with ancillary uses of a service station and convenience restaurant on land situated at 39 Barns Lane Coolum (“the site”).
- [2]Appeal 2838 of 2016 relates to a development application to establish a Bunnings Warehouse with a gross floor area (“GFA”) of 8,600m². This is described in the evidence as “Scheme B”. This development application also sought a reconfiguration of one lot into four lots. Appeal 4368 of 2016 concerns a Bunnings Warehouse with a GFA of 5,850m² which is referred to as “Scheme C” in the evidence. It also contemplated a reconfiguration of one lot into four lots.
- [3]In the course of the hearing of the appeals, the appellant abandoned the ancillary uses of service station and convenience restaurant in respect of each of the development applications. What is now sought for both Scheme B and Scheme C is a stand alone Bunnings Warehouse without any reconfiguration. Pursuant to orders of the court made on 29 August 2018, the appeals are now to be determined on the basis of amended plans of development which reflect this.[1]
- [4]Each of the development applications is a development application (superseded planning scheme) and must be heard and determined pursuant to Maroochy Plan 2000 (“The Superseded Planning Scheme”).
- [5]Both appeals were filed before the commencement of the Planning Act 2016 (Qld). Accordingly, the Sustainable Planning Act 2009 (Qld) (“SPA”) applies to the proceedings.[2] The Chief Executive under SPA was a concurrence agency for each development application. In each instance the Chief Executive required conditions to be attached to any development approval which primarily required an identical upgrade of the nearby Yandina-Coolum Road intersection roundabout.[3] Significantly there was no mention of a future resumption of any of the site for road upgrades. Furthermore, the concurrence agency did not elect to participate in either of the appeals.
The site and the surrounding locality
- [6]The site is located on the western side of the urban area of Coolum. It is described as Lot 102 on SP161821 and has a total area of 68,279 m². It is bounded by the Sunshine Motorway to the west and the Yandina-Coolum Road to the south. Both of these roads are state government controlled roads and intersect at a major roundabout to the south-west of the site. It has a primary frontage to Barns Lane to the east of 575 metres. To the south-east on the opposite side of Barns Lane is Coolum State Primary School. The balance of the land on the opposite side of Barns Lane forms part of the Noosa National Park. The site is vacant, having previously been used for grazing purposes.[4]
The disputed issues
- [7]Attempts to refine and focus the issues in dispute between the parties prior to the commencement of the hearing of the appeal were only partially successful. By the end of the hearing it became apparent that they may be described as follows:
- The appropriateness of the proposed developments and whether they conflict with the Superseded Planning Scheme in terms of their:
- (a)proposed scale, intensity and function;
- (b)inconsistency with the intended retail hierarchy;
- (c)likely impact on existing centres and traders;
- (d)impacts on visual amenity and character;
- (e)appropriateness as an “entry statement” to Coolum;
- (f)absence of master planning for the site.
- Whether the proposed developments will result in unacceptable traffic impacts.
- The nature and extent of any conflicts with the Superseded Planning Scheme and whether there are sufficient grounds to justify the proposed developments despite the conflicts.
The assessment regime
- [8]As noted above, each development application giving rise to the appeals before me was a development application (superseded planning scheme). Relevantly section 315(1) of SPA provides:
“(1) If the application is a development application (superseded planning scheme), the assessment manager must assess and decide the application as if –
(a) he application were an application to which the superseded planning scheme applied; and
(b) the existing planning scheme was not in force
…”
- [9]These provisions modify the assessment process which would otherwise apply pursuant to section 314 of SPA. The procedure on the hearing of an appeal is similarly modified. Pursuant to section 495 of SPA an appeal is by way of hearing anew[5] however, section 495(4) relevantly provides:
“(4) To remove any doubt, it is declared that if the appellant is the applicant or a submitter for a development application –
…
(b) In an appeal against a decision about a development application (superseded planning scheme), the court also must –
(i) consider the aspect of the appeal relating to the assessment manager’s consideration of the superseded planning scheme as if the application were made under the superseded planning scheme; and
(ii) in considering the aspect, disregard the planning scheme applying when the application was made.”
- [10]As each appeal is an appeal by the applicant for a development application it is for the appellant to establish that the appeal should be upheld.[6]
Relevant planning controls
- [11]The Superseded Planning Scheme ceased to have effect on 21 May 2014. As at this date the South-East Queensland Regional Plan (“SEQRP”) designated regional activity centres for the Sunshine Coast. The principal centre was identified as Maroochydore and Noosa was identified as a major centre. Coolum was not identified as either.[7] Section 8.6 of the SEQRP stated that the regional activity centres network encouraged centres that create economic growth by co-locating a mix of land uses and sought to exclude out-of-centre land use and development that would detrimentally impact on activity centres.[8]
- [12]I now turn to the relevant provisions of the Superseded Planning Scheme itself. As a starting point it is necessary to have regard to the following provisions which give instructions for the interpretation of it in circumstances where the proposed developments in each instance were impact assessable:
“2.2 Explanation of the Way the Shire is Divided for the Purposes of this Planning Scheme
- (1)This Planning Scheme is intended to recognise and be responsive to the individual character and needs of the many different localities which exist across the Shire. Accordingly, the Shire has been divided geographically into Planning Areas, each of which is further divided into Precincts.
- (2)The Shire is divided into Planning Areas as shown on the Planning Area and Precinct Map.
…
- (3)Each Planning Area is further divided into Precincts.
…
- (4)Proposals for impact assessable development will be assessed against the statements of desired local character (made up of the Location and Role, Vision Statement and Key Character Elements) for the Planning Area and Statement of Desired Precinct Character for the individual Precinct in which the development site is situated which are set out in Volume 3.
- (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.
- (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 Volume 2 and 3 are inconsistent, statements in Volume 3 prevail over inconsistent statements in Volume 2. This reflects the fact that Volume 2 provisions are either broad strategic statements or statements of general principle, whereas Volume 3 provisions state specific and considered planning intents for identified localities. 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. …”[9]
- [13]
- [14]In the Strategic Plan, DEO 3 speaks of Maroochydore filling its role as a Principal Activity Centre as recognized in the SEQRP, complimented by a hierarchy of lower order centres at suitably accessible locations.[12]
- [15]Subsequently in the Strategic Plan the Preferred Dominant Land Use of Urban is described in the following terms at s. 3.4.1:
“ The Urban allocation identifies areas suitable for residential premises of varying densities, but allows for retail, commercial, community services and general industrial activities required to serve the day-to-day needs of local communities and which are of a scale appropriate to these needs.”[13]
- [16]The Strategic Plan thereafter identified a Retail and Commercial Centres Hierarchy which designated a Principal Activity Centre at Maroochydore as the highest order of Retail and Commercial Centre with a Major Activity Centre at Nambour sitting below it. Coolum was recognised as being both a Tourist Centre and a Village Centre, designated to provide retail and commercial facilities to satisfy the needs of tourists and of the town.[14]
- [17]In the Objects and Implementation Measures in the Strategic Plan which follow, at s 3.5.6 criteria are listed for assessing applications for non-residential uses in Urban areas, including:
“Approval is only likely to be granted to development of retail, commercial and service uses which are to be located on a specific site (in a Centre Precinct or site specifically identified) and which offer a service only to local communities (other than in the Maroochydore Principal Activity Centre) and are consistent with the intent for and, and desired character of the Planning Area and Precinct in which it is to be situated (sic).”[15]
- [18]The Strategic Plan also relevantly addressed Visual Amenity, stating that one of the key issues forming the basis for the Visual Amenity strategy included at s 7.2:
“…the importance of major roads, particularly the Sunshine motorway, Bruce Highway and the David Low Way, which offer ever changing experiences of the diverse range of landscapes evident in the Shire, in conveying a Shire image to residents and tourists;”[16]
- [19]In the more specific provisions of Volume 3 of the Superseded Planning Scheme, Precincts identified as “Master Planned Community” are described as having the following General Intent at s 2.5:
“Lands included in these precincts are intended to provide for the orderly growth of the Shire into “greenfield” areas nominated by the Strategic Plan for “urban” purposes. Most of these lands, are being developed, or will likely be developed, for residential uses and for purposes which are compatible with and support residential uses.
…”[17]
- [20]In the Statements of Desired Character for Planning Areas and Precincts it is stated at s 3.11.1 inter alia, it is the role of Planning Area 11 to provide for Coolum to remain a small scale Tourist Centre.[18] The Vision Statement includes the following passage at s 3.11.2:
“The Coolum Beach township will continue to develop as an attractive coastal village, with a growing number of boutique eateries, shops and tourist facilities. The township will have a compact village centre and will provide only a limited range of goods and services to meet the immediate needs of residents and visitors to the locality.”[19]
Subsequently it is stated that:
- (a)Coolum Beach will remain a casual, seaside village serving local retail, business, dining and entertainment needs only. The residents of Coolum have indicated they are prepared to forgo the provision of higher order and larger scale retail and commercial services in order to maintain local character and identity.”[20]
- [21]Relevantly it’s thereafter stated at s. 3.11.3:
- (b)Commercial and business activities will be concentrated in the area north of Beach Road, south of Margaret Street and east of Sunrise Street. This will be a small scale Village Centre, accommodating a mix of boutique retail, business and community facilities. Within this Planning Area, the scale of retail and commercial activities will be limited to serving the immediate catchment area of Coolum and will not serve a district or higher order function.”[21]
- [22]In terms of Precinct 7 itself, in the Intent it is stated at s 3.11.4:
“Council considers that a Local Area Master Plan, overall master plan or other Development Plan for this precinct is required if the precinct were to be redeveloped.
Showrooms would be an appropriate use for this precinct, provided the following criteria were met to Council’s satisfaction:
- buildings set within well landscaped grounds;
- carparking located behind the buildings and not visible from the Sunshine Motorway and the Coolum-Yandina Road which forms the main entrance into the township;
- a range of goods and services which does not compete with the range of goods and services available in the Village Centre Precinct. Items for sale in this precinct should be restricted to larger scale items such as bulky goods.
Provision should be made in this precinct for an entry statement which introduces the motorist to the Coolum Beach township. This entry statement could be in the form of a small park with appropriate signage.”[22]
- [23]Subsequently under the heading “Preferred and Acceptable Uses” it relevantly states:
“The following uses may be considered consistent with the intent and desired character of this precinct, and suitable for inclusion in detailed master planning, where appropriately located, sited and designed:
- showrooms
- indoor recreation, where an indoor sports centre
- outdoor recreation
- government facilities”[23]
- [24]Finally of particular relevance to the appeals are the respective definitions of “Shop” and “Showroom”. These uses are defined as follows:
“Shop” means the use of premises for the display and retail sale of goods to members of the public, including, hairdressing salons, barber’s shops, video libraries, public art galleries and:
(a) premises having a Gross floor area of less than 450m² that would otherwise be defined as a Showroom; or
(b) premises having a Gross floor area of less than 100m² that would otherwise be defined as a Light industry;
and includes a general store.
…
“Showroom” means the use of premises for the display and/or retail sale of goods (not including food items) primarily of a bulky nature, including agricultural equipment, boats, hardware, electrical goods, bulk stationery supplies, computer goods, caravans, furniture, floor coverings, building supplies, motor vehicles, motor accessories, sporting equipment or the like, wholly or mainly indoors, having a gross floor area of 450m² or more. The term includes any area used for the selling of spare parts and the carrying out of repairs, servicing and detailing where such use is incidental to and necessarily associated with the Showroom. The term does not include Shops or Sales and hire yards as separately defined; …”[24]
Previous court decisions relating to the site
- [25]The site has been the subject of detailed judicial consideration in the past. In Koerner & Ors v Maroochy Shire Council & Ors[25] the Planning and Environment Court dismissed an appeal against the approval of a proposed commercial/retail centre on the site which included a full-line supermarket and a number of showrooms smaller in scale than either of the proposed developments under consideration by me. In considering the planning intent for the site pursuant to the Superseded Planning Scheme in the course of dismissing the appeal, Wilson SC DCJ noted:
“[30] Although the Plan speaks of the approval of retail, commercial and service uses which offer a service only to local communities this aim is, as has previously been observed, more wishful thinking than a mandatory requirement. This site, Precinct 7, is on land immediately adjacent to a motorway with access from it and will be convenient to and therefore attract not only residents of the nearby community but also passers by on the motorway.
[31] Otherwise, Precinct 7 does not on its face fit comfortably within the hierarchy envisaged in the retail and commercial strategy. It is specifically promoted for commercial, non-residential activity. At the same time it is a planned precinct of some seven hectares, in an area in which showroom development is encouraged. On any view it is inevitable that showrooms beside a motorway, and with direct access from it will attract customers beyond the immediate local area. Hence if Precinct 7 was developed as it is described in Vol. 3 it would always have a trade area beyond that of a local centre. In context that cannot be described as an unacceptable result but, rather, as an inevitable consequence of the planning decision to promote showrooms on the site.”[26]
- [26]Relevant to His Honour’s decision in dismissing the appeal was the strong need for the supermarket use included in the proposed development.[27]
- [27]A plan of this development shows the approved uses in buildings much smaller than the Bunnings Warehouse proposed by either Scheme B or Scheme C in an integrated setting, covering almost the entirety of the site with landscaped parking areas in what might be considered a master planned development.[28] It is uncontentious that this development approval (“the 2003 development approval”) elapsed some years before the Superseded Planning Scheme ceased to have effect.
- [28]A subsequent application was made for a material change of use for a development permit for four more showrooms to be added to the 2003 development approval. It was refused by the Council. The total GFA of 8,315m² included a Bunnings Warehouse with a GFA of 5,815m². It was the subject of a further decision of the Planning and Environment Court in Coolum Properties Pty Ltd v Maroochy Shire Council & Ors[29]. Again, the Superseded Planning Scheme was in force at the relevant time. In dismissing the appeal, Dodds DCJ noted firstly that the proposed Bunnings use was more appropriately defined as a “shop” than a “showroom” in the Superseded Planning Scheme:
“[24] The proposed Bunnings store fits much more readily into the definition of “shop” in MP2000, albeit one that operates like a large supermarket, except that it does not display and sell food. It comprises “premises for the display and retail sale of goods to members of the public” and is not a showroom as defined. Although a significant area of space may be occupied by bulky goods it is not premises used for the display and/or retail sale of goods primarily of a bulky nature.”[30]
- [29]After considering relevant provisions of the Superseded Planning Scheme His Honour concluded, inter alia:
“[37] When the intent and the statement of preferred and acceptable uses for Precinct 7 is addressed though, it appears that application of the statements I have referred to which may apply across the whole of Planning Area 11, is deprived of its apparent rigour. Showrooms, even indoor and outdoor recreation will by their nature draw from a greater area than Coolum Beach particularly when located beside the Sunshine Motorway and Yandina-Coolum Road. So many a government facility. It is expressly indicated that a police, fire and other necessary functions “may serve Coolum Beach and beyond”. That is not to say that the statements are to be ignored. The statements must be read alongside the statements of intent and preferred and acceptable uses. Read together, the provisions of the scheme regarding development in Precinct 7 may be put into context.
…
[41] When the provisions for the planning area are read together with the indicated intent and preferred and acceptable uses in Precinct 7 uses of the scale here designed to reach out as widely as disclosed by the evidence are not supported by the planning scheme. The precinct 7 provisions are not a carte blanche to develop the land with showrooms or any other use indicated (or a shop). The precinct is what it is described as in Planning Area 11, a master planned community in prospect in the planning area where certain nominated commercial or administrative uses and node housing subject to certain conditions may be appropriate. Showrooms are one of those uses. One of the conditions is that items for sale “should be restricted to larger scale items such as bulky goods”. All uses are required to be appropriately located, sited and designed. A local area structure plan, overall master plan or other development plan is indicated. This implies a need to consider the overall mix or type of uses across the whole site, consideration informed by the key roles, vision and key character elements of the planning area. These have a role to play in understanding the Planning Scheme as it applies to this proposal. So do the provisions of the Strategic Plan.
[42] It is not a correct approach to MP2000 to focus on precinct 7, as a stand alone precinct where according to the planning scheme, showrooms would, amongst other things be an acceptable use and conclude that any extent of showroom development is supportable. A wider consideration of the Planning Scheme is required. An evident intention in the planning scheme for showrooms on the land does not override other provision (sic) of the Scheme and imply any level of showroom development.”
[56] When the provisions of the scheme, the vision and the key character elements of Planning Area 11, the intent and preferred uses of Precinct 7, the provisions of the Strategic Plan about land with an urban designation, the provisions in Volume 1 about land use, planning area and precincts, and how they work together, are read broadly and in a way which will best achieve the apparent purposes and objectives of the scheme, then there is no direct inconsistency between the general provisions of the strategic plan and provisions for Planning Area 11 and Precinct 7. The major impediment to the proposal the subject of the appeal is conflict with the planning scheme. The conflict lies in the type and intensity of the proposed development in addition to that already approved particularly with the proposed “Bunnings use”.[31]
- [30]The decision of Dodds DCJ was the subject of an unsuccessful appeal to the Court of Appeal.[32] In the leading judgment, Holmes JA again carefully analysed relevant provisions of the Superseded Planning Scheme. Firstly, Her Honour noted that the finding of Dodds DCJ that “the proposed Bunnings premises fitted more readily into the definition of “shop” rather than a “showroom””. She did not specifically endorse it.[33] Ultimately however she did endorse the reasoning of Dodds DCJ in the decision below in the following terms:
“[16] His Honour’s approach to the construction of the provisions relating to Precinct 7 was entirely unexceptional. He did not treat the general provisions of the planning scheme as prevailing over the specific provisions; rather he treated the planning scheme provisions as a whole as illuminating the content of the Precinct 7 provisions. There was no direct conflict or inconsistency between the two; that being the case, cl 2.3(6) of Volume 1 required him to approach his task on the basis that conflict with the Planning Scheme was to be avoided by ensuring that “all elements of the policy or intent” in the Strategic Plan (Volume 2) and the statements of intent and desired character and intent for Planning Areas and Precincts (Volume 3) were met.
[17] The relevant references in the Strategic Plan have already been set out; they include, in cl 3.5.6, the indication that approval is likely only for retail and commercial uses offering a service only to local communities and the identification of scale as relevant in the preservation of the community focus and identity. In similar vein, the Planning Area Vision Statement expresses its intent that commercial activities will be limited to serving the immediate catchment area of Coolum. The Precinct 7 provisions could not be read in isolation from those prescriptions.
[18] His Honour had regard to the policy and intent underlying those provisions, as cl 2.3(6) of Volume 1 required, and properly reached the conclusion that the type and intensity of the proposed development conflicted with the planning scheme provisions.”[34]
Planning need
- [31]The appellant submits that there is a need for either of the proposed developments and that this need justifies approval of either of them despite any conflict with the Planning Scheme. The concept of need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor[35]:
“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 not being adequately met…”
- [32]
- [33]Two retail economists gave evidence in the course of the hearing of the appeal, Mr Leyshon who was called by the appellant and Mr Brown who was called by the respondent. They examined the likely consumer demand for either a Scheme B or a Scheme C Bunnings Warehouse in the context of existing facilities. There is a 12,000m² Bunnings Warehouse at Maroochydore and a 8,500m² Bunnings Warehouse at Noosaville.[38] They are located in conformity with the centres strategy in the SEQRP and the retail hierarchy in the Superseded Planning Scheme discussed above. Both stores have extensive trade areas which overlap with that identified as likely to apply to a Bunnings Warehouse on the site. The agreed trade area map on which they base their analysis extends well beyond Coolum Beach, to the edge of Peregian Beach in the north, to the Maroochy River in the south and west of Yandina.[39] There are a number of smaller stores within the identified trade area with which a proposed Bunnings Warehouse on the site would compete. These include a small 390m² Mitre 10 which is located in the Coolum Beach Village Centre and a Home Hardware store at Peregian Beach comprising 915m² plus external storage.[40]
- [34]Mr Leyshon concluded that there was a “strong level of need” for either a Scheme B or Scheme C Bunnings Warehouse at the site.[41] Conversely Mr Brown was of the view that the Scheme C proposal would not achieve sufficient sales productivity until between 2021 and 2026[42] and that the Scheme B proposal would not achieve sufficient sales productivity until 2026.[43] In his analysis Mr Leyshon expressly considered existing sales captured by the Bunnings outlets at Maroochydore and Noosaville from data which disclosed the postcodes of customers.[44] From this information he analysed expenditure of residents within the agreed trade area[45] utilising this data in his reasoning. I am of the view given the more empirical analysis undertaken by Mr Leyshon, that the conclusions of Mr Leyshon are to be preferred to those of Mr Brown in terms of the likely demand for a Bunnings Warehouse on the site. However, contrary to what Mr Leyshon purports to conclude, this does not equate to a strong level of planning need, given the second limb of the test identified in Isgro above.
- [35]The likely demand for a Bunnings Warehouse on the site is only part of the equation in assessing whether there is a planning need for a proposed development. In determining whether there is a need for a Bunnings Warehouse on this site, the question must be also asked whether there is a latent unsatisfied demand for one which is not being currently met by other Bunnings Warehouses. Mr Brown expressed the view that the residents of the identified trade area[46] are presently well served not just by a Bunnings but by a choice of Bunnings.[47] Unlike supermarkets which satisfy the day-to-day requirements of a household, less frequent trips are made to a Bunnings outlet which is in a different category to a supermarket. Whereas a supermarket is typically accessed three times a week, a Bunnings Warehouse might only be accessed once a month or once every couple of months.[48] Moreover, both the Bunnings Warehouse at Noosaville and the Bunnings Warehouse at Maroochydore are readily accessed through an arterial road network in 15 to 20 minutes driving time which is not unreasonable for accessing this type of retail facility.[49]
- [36]Pursuant to section 314(3) of SPA I must have regard to the common material in determining the appeal.[50] In this regard the Scheme B proposal generated 862 submissions of which 838 were opposed to it.[51] Almost all of these submissions either acknowledged the proximity and travel time to the Maroochydore Bunnings and the Noosaville Bunnings or expressly stated that the submitter did not mind the drive. In terms of the Scheme C proposal there were 1,001 submissions of which 995 were opposed to it.[52] Again, almost all of these submissions either acknowledged the proximity of the Maroochydore Bunnings and the Noosaville Bunnings or expressly stated that the submitter was content to drive there.
- [37]On the facts before me I therefore conclude that there is not a strong level of planning need for a new Bunnings Warehouse on the site that is not being adequately met by the existing outlets at Noosaville and Maroochydore. I appreciate that is a double negative. To put it another way the needs of residents to access a Bunnings Warehouse are adequately met by the existing outlets. This is evident not only from the type of use and the accessibility of both existing outlets from the trade area but also from the submissions generated by the development applications. So to paraphrase McMurdo JA in Bell[53] there is not a need for this development either in the form of Scheme B or Scheme C.
Visual amenity
- [38]Two suitably qualified experts gave evidence about visual amenity impacts and appropriate treatments for the proposed developments. Mr Powell was called on behalf of the appellant and Mr McGowan was called on behalf of the respondent. I accept the view of both experts that suitable vegetation buffers can be grown to almost completely screen either proposed built form within an eight year period.[54] Effectively what would remain visible would be glimpses of the built form and views of the signage.[55] I am of the view that this a satisfactory outcome from a visual amenity perspective and addresses the relevant key issue in s 7.2 of the Strategic Plan, and any allegedly relevant more general provisions in the Superseded Planning Scheme nominated by the respondent.[56] I find this to be so regardless of any prospective road resumption by the concurrence agency[57] which was not the subject of a concurrence agency condition and is therefore, at best, speculative.
- [39]The fact remains however that either the Scheme B proposal or the Scheme C proposal will be recognisable as a Bunnings on the site for motorists entering Coolum. I will discuss this consequence in detail below.
Traffic issues
- [40]Two traffic engineers gave evidence at the hearing of the appeals, Mr Trevilyan on behalf of the appellant and Mr Douglas on behalf of the respondent. The respondent was critical of the methodology of the traffic assessment initially undertaken by Mr Trevilyan. He ultimately undertook further assessments producing multiple reports in an endeavour to meet the criticisms being levelled against him by Mr Douglas. The fact remains that a full traffic assessment of the site was not ever undertaken despite the requirement in the Planning Scheme that it be subject to a master plan.[58] This appears to be more a shortcoming from a planning perspective than from a pure traffic perspective as Mr Douglas conceded in the course of his evidence that the proposed roundabout upgrade the subject of the concurrence agency condition in each instance will be “comfortably adequate” to accommodate the additional traffic generated by a proposed Bunnings Warehouse on the site at 2020, and at 2030 “it’ll be touch and go…”.[59] Moreover, Mr Douglas acknowledged that, in any event, traffic signals would be a satisfactory solution in this regard.[60] I am therefore of the view that either proposed development would not have unacceptable traffic impacts. Any traffic impacts can be addressed by the imposition of appropriate conditions.
Conflicts with the Superseded Planning Scheme
- [41]The correct approach to the construction of planning documents was considered by the Court of Appeal in Zappala Family Co v Brisbane City Council.[61] Morrison JA relevantly stated:
“[52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.
…
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
…
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.”
…
[56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”[62]
- [42]There is a strong centres strategy running through the Superseded Planning Scheme. In designating the site as urban in s 3.4.1 of the Strategic Plan it is intended that retail activities serve the day-to-day needs of local communities and at a scale appropriate to these needs.[63] The Retail and Commercial Centres Hierarchy seeks to concentrate activity in designated activity centres with a Principal Activity Centre at Maroochydore and, relevantly, a Major Activity Centre at Nambour.[64] Coolum is merely a Village Centre (and otherwise described as a Tourist Centre) which is intended to have retail facilities satisfying the needs of the town.[65] Obviously the centres strategy is designed to mirror that in the SEQRP. The strategy in question is designed to ensure orderly development from a planning perspective. A retail hierarchy also ensures that there is an equitable distribution throughout the community of different levels of centres which provide different levels of service. Mr Forsyth, the planner called on behalf of the appellant, conceded this.[66] Mr Forsyth also conceded that there are synergies involved in concentrating activities, including retail and business activities in centres and that is a fundamental part of planning.[67] However, he considered a Bunnings facility was a stand alone outlet.[68] This is not an outcome contemplated by the Strategic Plan. Moreover Mr Perkins, the planner called on behalf of the respondent observed that residents of Coolum will still need to travel to access higher order facilities in nominated centres even if either of the proposed developments is approved.[69] Given the size of the trade area for the proposed developments, they are in fundamental conflict with the intended retail hierarchy set out in the Strategic Plan.
- [43]The conflict identified above is even more stark when the Planning Area provisions in Volume 3 of the Superseded Planning Scheme are considered. These reinforce the intention that Coolum remain a small scale centre. The intention is stated in a number of places in the provisions concerning Planning Area 11. In the Vision Statement it is intended that the township have a compact Village Centre and only provide a limited range of goods and services to meet the immediate needs of residents and visitors to the locality. This is reinforced subsequently when it is stated that Coolum will serve only local retail needs.[70] Subsequently, in listing the Key Character elements it is stated that in the Planning Area “the scale of retail and commercial facilities would be limited to serving the immediate catchment area of Coolum and will not serve a district or higher order function”.[71] I note the observations of Wilson SC DCJ in Koerner[72] and Dodds DCJ in Coolum Properties[73] about the inevitable tension between these provisions and the encouragement of showrooms in Precinct 7, however the proposed developments are well beyond what may be viewed as appropriate for the site having regard to the anticipated trade area, when the Superseded Planning Scheme is read as a whole.
- [44]Precinct 7 is intended to be a master planned area where showrooms are appropriate providing, inter alia, they provide a “range of goods and services which does not compete with the range of goods and services available in the Village Centre Precinct” and they are “restricted to larger scale items such as bulky goods.”[74] In considering the appropriateness of the proposed developments in Precinct 7 it is appropriate to determine whether the use of the site for a Bunnings Warehouse comes within the definition of a “Showroom”. In this regard it is necessary that the goods being sold be “primarily of a bulky nature”.[75] The term bulky is defined in the Macquarie dictionary as “of great and cumbersome bulk or size”.[76] In an endeavour to discharge its onus of proving that the goods intended to be sold at a Bunnings Warehouse on the site would primarily be of a bulky nature, the appellant tendered the floorplan of the Bunnings Warehouse at Noosaville together with a photograph of each of the aisles.[77] Having regard to this evidence I am not satisfied that the goods proposed to be sold at a Bunnings Warehouse on the site will primarily be of a bulky nature. It follows that the proposed use is not appropriately defined as a “Showroom” pursuant to the Superseded Planning Scheme. It is therefore not a preferred and acceptable use for the site.
- [45]It is also clear that the range of goods and services proposed to be sold will compete with the range of goods and services available in the Village Centre Precinct at the Mitre 10 store. There is therefore a further obvious conflict with the requirements for development in Precinct 7. I accept the evidence of Mr Brown that not only will a proposed Bunnings Warehouse compete with the range of goods and services sold at the Mitre 10 but it will also cause it to close.[78] Although the loss of the Mitre 10 will be made good by a Bunnings Warehouse on the site applying the principles in Kentucky Fried Chicken Pty Ltd v Gantidis,[79] the significant conflict with the outcomes envisaged in the intent for Precinct 7 remains.
- [46]In terms of an entry statement for Coolum as contemplated in Precinct 7, I am satisfied that this is already addressed by a sign in a landscaped setting adjacent to the Yandina-Coolum Road.[80] However, there is a big difference between a master planned development of the site and a stand alone enormous retail shed which is contemplated by either of the proposals. The failure to master plan the site results in an unsatisfactory outcome from a planning perspective as the Superseded Planning Scheme does not contemplate a stand alone retail shed, even if it is largely buffered by vegetation, in this prominent location. This also represents a significant conflict with the Superseded Planning Scheme.
- [47]To the extent that the conflicts identified above relate to provisions discussed by Dodds DCJ in Coolum Properties[81] and subsequently by the Court of Appeal,[82] I respectfully adopt their reasoning quoted above. The appellant sought to distinguish these decisions on the basis that the Bunnings the subject of those decisions was part of a much larger proposed development. Whilst it is true that the intensity of that proposed development was much greater when allowing for the uses the subject of the 2003 development approval, the reasoning with respect to the use of a Bunnings Warehouse on the site remains regardless. In terms of scale, on the facts before me, either proposed development will result in the same conflicts with the provisions of the Superseded Planning Scheme identified by Dodds DCJ and confirmed by the Court of Appeal. The type, scale and intensity of what is proposed in either Scheme B or Scheme C is in conflict with the Superseded Planning Scheme for the reasons explained by Holmes JA, which in the circumstances, are binding on me. I have in any event, reached the same view on my own reasoning, which is set out above.
Grounds
- [48]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.[83]
- [49]The term “grounds” is defined in Schedule 3 of SPA in the following terms:
“1. Grounds means matters of public interest.
- Grounds does not include the personal circumstances of an applicant, owner or interested party.”
- [50]
“1. examine the nature and extent of the conflict;
- 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;
- 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.”[86]
The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.[87]
- [51]The issue was recently revisited by the Court of Appeal in Bell v Brisbane City Council & Ors[88] where McMurdo JA observed:
“[66] Section 326(1)(b) will be engaged only where there is a tension between the application of the relevant instrument, here a planning scheme, and the public interest. If that tension exists, it will be for the decision maker to consider whether there are sufficient grounds, in the public interest, to depart from the instrument. Necessarily, cases where that tension exists will be exceptional, because a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land…
[68] Cases could arise where relevant circumstances have changed since the planning scheme was made, or where it can be seen that there is a factual error in the scheme itself. There might also be cases where it is evident that the planning scheme has not anticipated the existence of circumstances which have created a need for a certain development in the public interest. In exceptional cases of all of these kinds, the decision maker might be able to conclude that the planning scheme is not, in the particular case, an embodiment of what is in the public interest.
…
[70] Consequently, any consideration of the application of s 326(1)(b) of the SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant aspect, be applied unless the contrary is demonstrated…”
- [52]The first ground put forward by the appellant is that the proposed development is a type of development which is identified as appropriate in Precinct 7 or is a materially similar type of development. As indicated above the scale of either proposed development fundamentally conflicts with the retail hierarchy set out in the Superseded Planning Scheme. Furthermore having regard to the more detailed provisions relating to Planning Area 11 and Precinct 7, it is not contemplated for the site and this is even more evident when one considers that it is not the subject of any master planning. There is no merit in this ground.
- [53]The second ground put forward by the appellant is that the relevant provisions of the Superseded Planning Scheme have been overtaken by events. Such an argument is unattractive at first blush when a developer elects to proceed via a development application (superseded planning scheme). Self-evidently a new planning scheme is now in force but the court can have no regard to it. The opportunity to consider such an argument lies in the narrow window at the end of the Superseded Planning Scheme but before the current planning scheme took effect. The principle was noted by White J in Grosser v Council of Gold Coast[89] where her Honour observed:
“It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid”.
- [54]Such a circumstance occurred in Harvest Investment Co (No.2) Pty Ltd v Sunshine Coast Regional Council & Ors[90] where the council had permitted a prosperous retail centre to emerge contrary to what was contemplated by the Superseded Planning Scheme. Obviously on the facts before me, the 1993 development approval over the site cannot be considered in this regard as it had lapsed well prior to the Superseded Planning Scheme ceasing to have effect. In support of its submission in this regard the appellant relies upon the approval of a Woolworths supermarket in an out of centre location in south Coolum Road, a Coles supermarket within the Village Centre of Coolum and a Dan Murphy’s liquor outlet which was also located within the Village Centre and approved during the life of the Superseded Planning Scheme.[91] The Woolworths supermarket approval occurred in response to overwhelming need, in circumstances where there was simply not an appropriately located supermarket to serve the wider region at the time it was approved.[92] Similar considerations were relevant to the approval of the Coles supermarket in circumstances where it was a redevelopment of an existing supermarket and it has not been demonstrated to me that it was approved other than in the exercise of appropriate planning discretion taking into account legitimate concerns arising in the context of the Superseded Planning Scheme. The same can be said for the Dan Murphy’s liquor store which was approved in the context of a redevelopment of an existing hotel and bottle shop.[93] These isolated developments are readily explicable as examples of the exercise of sound planning discretion on the part of either the respondent or the Planning and Environment Court. They are not examples of the Superseded Planning Scheme being overtaken by events.
- [55]The third ground put forward by the appellant is that there is a need for the proposed development. I have already found that the need for the proposed development is already being adequately met by conveniently accessible Bunnings Warehouses at Noosaville and Maroochydore which are located in centres consistent with the intended retail hierarchy evidenced in the Superseded Planning Scheme. There is no merit in this ground either.
- [56]The next ground put forward by the appellant is that the proposed developments will result in beneficial traffic outcomes because of the upgrading of Barns Lane to accommodate them and the upgrade of the Yandina-Coolum Road roundabout as a consequence of the concurrence agency condition. Any incidental benefits that may accrue to other road uses as a consequence of the necessary roadworks to accommodate either of the proposed developments does not in my view justify the extreme conflicts with the Superseded Planning Scheme identified above. Such benefits are minor temporal benefits and do not, on balance justify approving either of the proposed developments notwithstanding the conflicts I have identified.[94] The same can be said of any reductions in the number of journeys to the Bunnings Warehouses at Noosaville and Maroochydore in circumstances where it is noted above, residents will still need to access higher order centres for other purposes.
- [57]The final ground put forward by the appellant is that the proposed developments will provide a community benefit without unacceptable impacts. For the reasons set out above I am of the view that this is not the case. Unacceptable impacts include undermining the retail hierarchy pursuant to the Superseded Planning Scheme and causing the failure of the appropriately located Mitre 10 hardware store in the Coolum Village Precinct.
Conclusion
- [58]The proposed developments are equally in serious conflict with the Superseded Planning Scheme in that they opportunistically seek to place a large stand alone Bunnings Warehouse in a location where such a use is not intended to be. The proposed scale, intensity and function of either Bunnings Warehouse in Scheme B or in Scheme C is in direct conflict with the detailed local planning provisions relating to Coolum Beach which seek to reinforce the higher order provisions relating to the centres strategy in the SEQRP and the retail hierarchy set out in the Strategic Plan. There will be an unacceptable impact on the Mitre 10 hardware business in Coolum Beach. The absence of any master planning makes for an inappropriate utilisation of the site in any event. No grounds have been put forward which are, on balance sufficient to justify approving either of the proposed developments notwithstanding the conflicts.
- [59]The appeals are dismissed.
Footnotes
[1] Exhibit 43 for Scheme B; Exhibit 44 for Scheme C.
[2] Planning Act 2016 (Qld) s 311.
[3] Exhibit 7, pp B434-B435; Exhibit 8, pp C433-C434.
[4] Exhibit 19, p 10.
[5] Sustainable Planning Act 2009 (Qld) s 495(1).
[6] Sustainable Planning Act 2009 (Qld) s 493(1).
[7] Exhibit 52, p 375.
[8] Ibid, p 380.
[9] Exhibit 9, p 8.
[10] Exhibit 9, p 20.
[11] Ibid, p 18.
[12] Ibid, p 49.
[13] Exhibit 9, p 53.
[14] Ibid, pp 59-62.
[15] Ibid, p 56.
[16] Ibid, p 67.
[17] Ibid, p 91.
[18] Ibid, p 93.
[19] Ibid.
[20] Ibid.
[21] Ibid, p 94.
[22] Ibid, p 99.
[23] Ibid.
[24] Ibid, p 22.
[25] [2004] QPELR 211.
[26] Ibid, at 216.
[27] Ibid, at 217-219, paras [39] & [55].
[28] Exhibit 20, p 19.
[29] [2007] QPELR 400 at 402.
[30] Ibid, at 404.
[31] Ibid, pp 407-410, paras [37] & [41]-[42] at [56].
[32] Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QCA 351.
[33] Ibid, at [11].
[34] Ibid, at [16]-[18].
[35] [2003] QPELR 414 at 418 [21].
[36] [2018] QCA 84.
[37] Ibid, at [43].
[38] Exhibit 13, p 12.
[39] Exhibit 13, p 12; Exhibit 13A.
[40] Exhibit 13, p 12.
[41] Ibid, p 41.
[42] Ibid, p 24.
[43] Ibid, p 25.
[44] Ibid, p 26.
[45] Ibid, p 26; Exhibit ex FG1.
[46] Exhibit 13A.
[47] T5-13 lines 5-6.
[48] T5-13 lines 15-38.
[49] T5-14 lines 15-45 and Exhibit 47.
[50] Sustainable Planning Act 2009 (Qld) s 314(3)(a).
[51] Exhibit 45.
[52] Exhibit 46.
[53] [2018] QCA 84 at [43].
[54] Exhibit 10, para 31.
[55] T2-102 lines 1-20.
[56] Exhibit 2B.
[57] Exhibit 17, p 16; Exhibit 26.
[58] Exhibit 9, p 99.
[59] T7-84 lines 15-30.
[60] T7-79.
[61] [2014] QCA 147, at p 13.
[62] [2014] QCA 147 at [52]-[56].
[63] Exhibit 9, p 53.
[64] Ibid, p 59.
[65] Ibid, p 60.
[66] T4-18 lines 10-20.
[67] Ibid, lines 35-40.
[68] T4-19 lines 30-35.
[69] T4-41 lines 1-10.
[70] Exhibit 9, p 93.
[71] Ibid, p 94.
[72] [2004] QPELR 211 at 216.
[73] [2007] QPELR 400 at 407.
[74] Exhibit 9, p 99.
[75] Ibid, p 22.
[76] 7th edition.
[77] Exhibit 41.
[78] Exhibit 13, p 39.
[79] (1979) 140 CLR 675 at 687.
[80] Exhibit 10, p 18.
[81] [2007] QPELR 400.
[82] Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QCA 351.
[83] Sustainable Planning Act 2009 (Qld) s 326(1)(b).
[84] [2012] QCA 370.
[85] [2002] QCA 234.
[86] [2012] QCA 370 at [18].
[87] Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474, 483.
[88] [2018] QCA 84 at [65] – [66], [68] and [70].
[89] (2001) 117 LGERA 153 at 165.
[90] [2017] QPEC 61 at [48].
[91] Exhibit 53.
[92] Luke v Maroochydore Shire Council [2003] QPELR 447.
[93] Exhibit 35; Exhibit 53.
[94] Any purported benefits in terms of parking for parents dropping and collecting children at Coolum State School have not been demonstrated on the evidence before me.