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- Unreported Judgment
Fabcot Pty Ltd v Ipswich City Council QPEC 11
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Fabcot Pty Ltd v Ipswich City Council & Anor  QPEC 11
FABCOT PTY LTD ACN 002 960 983
IPSWICH CITY COUNCIL
KELLY CONSOLIDATED PTY LTD ACN 050 719 312
(First Co-Respondent by Election)
4301 of 2019
Planning and Environment
Planning and Environment Court, Brisbane
14 April 2022
25, 26, 27 and 28 October 2021, 1, 2, 3 and 4 November 2021 with supplementary submissions received to 18 March 2022
The appeal is dismissed.
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application seeking a development permit for a material change of use to facilitate the development of a shopping centre – where site is in a residential zone in which a shopping centre is an inconsistent use – where the planning scheme designates existing and proposed centres – where the subject site is not part of a designated centre – whether the proposal would be an inappropriate use of the land – whether the proposal would make a positive contribution and be consistent with reasonable expectations in relation to built form, design and streetscape outcomes – whether there is an economic, community and planning need for the proposed development on the proposed site – whether the proposal would have an unacceptable economic impact on 2 existing centres in that network – whether there are relevant matters which warrant approval or refusal of the development application
Abeleda & Anor v Brisbane City Council (2020) 246 LGERA 90 at , 
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPELR 793 at 
Australian Capital Holdings Pty Ltd v Mackay City Council & Ors  QCA 157 at –
Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors  QPLR 209 at 211
Fabcot Pty Ltd v Cairns Regional Council  QPEC 38 at 
Family Assets v Gold Coast City Council (2009) 161 LGERA 43 at 
Garyf Pty Ltd v Maroochy Shire Council and Ors  QPEC 101 at , 
Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 at 
I.B. Town Planning v Sunshine Coast Regional Council  QPEC 36 at 
Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675 at 687
Lipoma Pty Ltd & Anor v Redland City Council & Anor  QCA 180 at -
Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors  QPELR 899 at 
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors  QCA 95 at .
Planning Act 2016 ss 45, 60
Planning and Environment Court Act 2016 s 45
B Job QC with M Batty for the appellant
E Morzone QC with T Stork for the respondent
C Hughes QC with J Lyons and L Walker for the first co-respondent by election
Connor O'Meara Solicitors for the appellant
Corrs Chambers Westgarth for the respondent
Anderssen Lawyers for the first co-respondent by election
Table of Contents
The Assessment Benchmarks
Land Use Provisions
Built Form/Design/Streetscape/Amenity/Local Character
The Centres Network
Need for Residential Land
General Site Suitability
- This applicant appeal is against the respondent’s refusal of an application seeking a development permit for a material change of use to facilitate the development of a shopping centre on land situated at 91 and 93 Raceview Street, Raceview and more particularly described as Lot 1 on RP 85420 and Lot 1 on RP 193006. The applicant is the property development arm of Woolworths, which operates Australia’s largest supermarket chain. The first co-respondent by election (or the business associated with it) owns and manages two existing shopping centres, namely Winston Glades and Yamanto Central.
- The subject site:
- (i)is located at the corner of Raceview Street and Cascade Street, which is a significant intersection;
- (ii)has an area of 1.2 hectares;
- (iii)has been and continues to be, used for a furniture manufacturing and distribution business carried out from a large unattractive warehouse/industrial building and associated office;
- (iv)lies opposite the Raceview Hotel, on the south-western corner of the intersection and a dental surgery on the south-eastern corner of the same intersection, and
- (v)lies approximately 250 metres south of its closest point to an existing shopping centre on Raceview Street (the Raceview Centre).
- The proposed development is for a shopping centre, with access from both Raceview Street and Cascade Street and featuring:
- (i)a total retail area of 3700 m² composed of:
- a full line Woolworths Supermarket of 3200m² (including 199m² of mezzanine office), and
- four specialty tenancies varying in size from 99m² to 150m², one of which is proposed to be a 150 m² BWS bottle shop;
- (ii)a small kiosk;
- (iii)an at-grade car park between the shopping centre building and Raceview Street;
- (iv)landscape buffers along the northern and western boundaries; and
- (v)street planting and landscape features along the street frontages.
- The development application was confirmed by the Council as being properly made on 26 April 2019. It accordingly falls to be decided under the Planning Act 2016 (PA) and the Planning and Environment Court Act 2016 (PECA). The appeal is a hearing anew. Fabcot bears the onus of establishing that the appeal should be upheld.
- The development application is impact assessable. Public notification of the development application attracted 46 properly made submissions, 26 of which objected to the proposal for reasons which included in relation to the impact of the proposal on existing centres, including upon the Winston Glades and Raceview centres.
- Impact assessment must be carried out against the assessment benchmarks in the categorising instrument for the development, being the Ipswich Planning Scheme 2006 (the planning scheme) and may be carried out against, or having regard to, any other “relevant matter”, other than a person’s personal circumstances, financial or otherwise. The term “relevant matter” is not defined, but examples given include a planning need.
- The explanation of the effect of the changed assessment framework under the PA, given by this Court in Ashvan Investments Unit Trust v Brisbane City Council & Ors was endorsed by the Court of Appeal in Abeleda & Anor v Brisbane City Council. Subject to s. 52 of the PA (which is not relevant in this case), s. 60(3) of the PA confers a broad planning discretion to approve (in whole or in part and subject to the imposition of conditions) or refuse a development application on an assessment manager or, on appeal, the Court.
- In Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors, the Court of Appeal (per Brown J with Philippides and Mullins JJA agreed) said:
“…The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision-maker.”
Conformity or otherwise with the assessment benchmarks in the relevant statutory planning document is therefore not necessarily decisive; that does not mean however, that the relevant provisions are lightly to be ignored. This Court has long recognised that it is not its role to substitute planning strategies of its making for those chosen, in a careful and proper way, by the planning authority, as expressed in the statutory planning documents. The relevant planning scheme provisions may well prove decisive in a given case, although the legislation does not dictate or mandate that outcome.
- The issues in the appeal pursued at the hearing may be broadly summarised as whether:
- (i)the proposal would be an inappropriate use of the land;
- (ii)the proposal makes a positive contribution and is consistent with community expectations in relation to built form, design and streetscape outcomes, and
- (iii)there is an economic, community and planning need for the proposed development on the proposed site;
- (iv)the proposed development would have an unacceptable economic impact upon the centre network and, in particular, on two existing centres in that network (Winston Glades and Raceview), inhibiting the capacity of those centres to properly achieve their planned function
- (v)there are relevant matters that otherwise support approval or refusal of the proposal.
The assessment benchmarks
- The planning scheme divides the local government area into nine localities, with the subject land contained within the “Urban Areas” locality. Land within the locality is included in one or other of 18 zones, which are variously of a residential, business or other nature. The subject land falls within one of the residential zones, namely the Residential Medium Density Zone.
- Table 4.6.1 of the planning scheme sets out the assessment categories and relevant assessment criteria for making a material change of use in the Residential Medium Density Zone. It provides that a proposal for a shopping centre is impact assessable. The relevant assessment criteria are stated in column 3 as follows:
“Urban Areas Code (Part 4)—particularly the specific outcomes in section 4.3.3 and the Residential Medium Density Zone (division 6) Commercial and Industrial Code (Part 12, division 7) Parking Code (Part 12, division 9).”
The Commercial and Industrial Code and the Parking Code are not relevant for present purposes.
- The heading to column 3 is “Relevant assessment criteria – applicable code if development is self-assessable or requires code assessment.” The column does however, on its face, set out relevant assessment criteria for impact assessable development. Footnote 27 to Table 4.6.1 states that, for impact assessable development, “relevant assessment criteria” are
“provided to assist the preparation of an application and in no way affect the regard being given to the planning scheme as a whole in accordance with s 3.5.5 of the IPA”.
- It would therefore appear that, for impact assessment, an application is to be assessed having regard to the planning scheme as a whole and that what is specified in column 3 of table 4.6.1 should not be taken to be necessarily exhaustive of the relevant assessment benchmarks. It should be noted however, that to say that an impact assessable application is to be assessed having regard to the planning scheme as a whole is not to say that each and every provision of the planning scheme will be relevant to each and every such application.
Land use provisions
- The planning scheme includes an Urban Areas Code. That code includes both overall outcomes and, in s 4.3.3, specific outcomes for the Urban Areas as a whole, as well as assessment criteria for each zone in the Urban Areas. Development that is consistent with the specific outcomes for the Urban Areas as a whole and the specific outcomes for the relevant zone complies with the Urban Areas Code.
“…are inconsistent with the outcomes sought and are not located within the Residential Medium Density Zone, and constitute undesirable development which is unlikely to be approved.”
- That provision, which also lists a range of other non-residential uses, is consistent with overall outcome 2(a) for the Residential Medium Density Zone which is as follows (underlining added):
“(a) The Residential Medium Density Zone provides a range of residential forms to meet community housing needs for higher intensity living, to the general inclusion of most other uses.”
- The application of that zoning to the subject site, notwithstanding its historical and continuing use, provides no support for, and militates against, the proposition that the site should be, or should be reasonably expected to be, permitted to be given over to shopping centre development. As Mr Schomburgk (the town planner called by the appellant) acknowledged in the joint report of the town planners, the planning scheme does not give rise to an expectation that if the site were to be redeveloped, a shopping centre would be the replacement land use.
- Whilst some non-residential development is envisaged within the zone and there are specific outcomes, in s 4.6.3(b) (from which the appellant sought to draw some comfort), that require a non-residential use to:
- (i)fulfill a local community need;
- (ii)be accessible to the population it serves;
- (iii)where possible co-locate with other non-residential uses, but not contribute to undesirable commercial urban development,
- (iv)not to have a significant detriment, impact on amenity, and
- (v)maintain a scale and appearance in keeping with the residential amenity and character of locality with adequate buffering or screening to nearby residential uses (both existing and proposed).
The provisions of s 4.6.3(b) must be read in the context of the provisions which confine the scope of the non-residential uses that are regarded as consistent uses within the zone.
- Subject to that however:
- (a)the proposal would be of a much greater scale and serve a much broader catchment than a general store (being the specified retail consistent use in s 4.6.5(2)), but there is, as discussed later, a relatively modest degree of community need which the proposal would serve;
- (b)the proposed development would be accessible to the population it would serve, given its location at the intersection previously described;
- (c)the proposed shopping facilities would not be co-located with other non- residential uses on the same site and would add to the extent of non- residential uses along Raceview Street, but is proposed to be located proximate to the other non-residential uses referred to earlier, and
(d) & (e) amenity and character are discussed below and, for the reasons given, would not persuade me to refuse the development application if the case in favour of it was otherwise sufficiently cogent.
Built form / design / streetscape / visual amenity / local character
- The overall outcomes for the Urban Areas include that:
(b) Definable but inter-related neighbourhoods are created and maintained with a strong sense of community identity.”
- The overall outcomes for the Residential Medium Density zone include that:
“Uses and works within the Residential Medium Density Zone are located, designed and managed to—
- (i)maintain residential amenity and strategic quality;
- (ii)maintain or enhance aspects of local character;
- (iii)be compatible with other uses and works;
- (iv)maintain the safety of people buildings and works; and
- (v)avoid significant adverse effects on the natural environment.”
- The provisions for the Residential Medium Density zone also contain specific outcomes for building setbacks and design. They include the following:
- (a)are setback 6 metres from the Street frontage unless an alternative setback does not detrimentally affect the character and amenity of the area and the overall townscape;
- (b)on the corner of major roads are sited and composed to form attractive ‘gateways’ and focal points;
- (c)protect and enhance the amenity and intended character of buildings on adjoining sites;
- (f)Use articulation to minimise the potential for bulkiness and disproportionate façade length; and
- (g)Avoid the use of blank walls, particularly where facing the street.”
- The specific outcomes for non-residential uses include, as has been observed, s 4.6.3(5)(c), which encourages co-location and discourages undesirable commercial ribbon development, and s 4.6.3(5)(e), that requires maintenance of a scale and appearance in keeping with the residential amenity and character of the locality, with adequate buffering or screening to nearby residential uses (both existing and proposed).
- Reference was also made to a number of provisions of the Local Retail and Commercial zone. The provisions relied upon deal with the attractiveness of building design, the avoidance of large expanses of blank walls, particularly where they are likely to be visually prominent, the alignment of buildings with the adjacent street grid and avoidance of impact on key focal points/landmarks, the orientation of buildings to the street frontage and the treatment of corner sites. The proposal is not for development in the Local Retail and Commercial zone and it is therefore difficult to see how those provisions are directly applicable. The considerations they raise or which underly them do however, overlap, at least to some extent, with the provisions set out earlier and the form of development proposed is one that is contemplated in the Local Retail and Commercial zone. The application of the provisions of the Local Retail and Commercial zone would not, in any event, alter my conclusion in relation to these issues.
- The proposal was criticised, particularly by Mr Mewing (the town planner called by the respondent) for being a supermarket with limited specialties (not providing for a broader community focus) in a built form featuring expanses of blank walls, with limited active facade components , a lack of good opportunity for casual surveillance and as constituting a large visually dominant and discordant non-residential structure, sitting behind an expanse of car parking to Raceview Street and presenting a “side wall” with a loading dock and servicing area to Cascade Street. It was said that the result does not positively engage with the public realm, including the streetscape at its corner location and is not in keeping with the intended amenity and character of the area. The existing inconsistent industrial use should not, it was argued, be used as justification for something at odds with the planned character of the area pursuant to the planning scheme provisions.
- The proposed development cannot completely hide its physical size and scale. It is a 3700m² shopping centre with an associated large outdoor, at grade, car park and a loading area. It is on a relatively flat site at a reasonably significant intersection that affords exposure. As Mr Buckley (the town planner called by the co-respondent by election) pointed out in the joint town planning report, the scale of the proposal and its components, including its large car park and visible loading dock activities, are not what would be reasonably expected in the prevailing zone. It should be noted that Mr Buckley did not regard the design of the proposal as itself a reason for refusal of the development application, although he said that the “issues of use and scale however create a different outcome”.
- In order to assess the likely impact of the proposal in these respects it is necessary to have regard, in a more detailed way, to the extent to which it responds to its context. In that regard the court had the benefit of the evidence of Mr Powell, an expert in visual amenity and landscape character. There was no counterpart expert. His evidence was to the effect that:
- (i)the existing character of the subject site is strongly influenced by the busy intersection, the existing warehouse on the subject site (with limited set back to Raceview Street and a loading bay to Cascade Street), the hotel to the south-west, the dental surgery to the south-east and the high fences of residential uses across the road to the east;
- (ii)the proposed building complies with the two-storey probable solution within sub-area LC1 of the Local Retail and Commercial Zone (although the site is not in that zone) and generally complies with the minimum 6m setback except for a small area in the south-west corner adjacent to a detention basin;
- (iii)the established low-rise urban profile of the area would be protected;
- (iv)the building provides 4m setbacks to both side/rear boundaries. It also transitions height above natural ground by setting part of the building below the existing ground, particularly where it sits nearest sensitive receptors. The height of the roof above the fence level is reduced and a transition between low impact and height impact uses is thereby created;
- (v)in addition to the above treatment of the interface with the northern and western boundaries, he recommends an increase to screening trees that will also reduce or avoid the prospect of these “blank walls” being visually prominent;
- (vi)the proposal would, by demolishing the existing warehouse, rid the site of its “hard” industrial edge to the street frontages and replace them with views to a new building with a low profile, a substantial setback to the east (behind the car park) and articulation to the south with the appearance of the built form being softened and the appearance of the area enhanced, by landscaping to both street frontages;
- (vii)ground covers are proposed to the car park edge to conceal the lower half of the cars to soften the visual impact of the car park and make a contribution to the local and streetscape character;
- (viii)whilst the proposal is not for an active street frontage in the sense of having the supermarket built to the street frontage, the proposed design better provides for passive surveillance of public space, pedestrian paths and car parking areas than would be the case were the car park to be located behind the building;
- (ix)whilst the proposal is not residential, it provides a responsive transition in height between the proposed commercial use and residential uses; there will be no discernible over-shadowing or overlooking impacts and the proposal provides for a set-down building, with a landscaped interface, that minimises potential for overbearing development and impacts on outlook, ensuring a high standard of residential amenity for adjoining residential uses, and
- (x)the landscaping along the edges of the site nearest the intersection provide a “gateway” design or feel for the site’s corner location.
- It was suggested that Mr Powell, in looking at the site’s context, paid too little regard to the “planned” character, pursuant to the zoning which, as has been observed, provides for a range of residential forms to the general exclusion of most other uses. The site’s present lawful use must however, be acknowledged, as must the other non-residential uses including the existing hotel on land in the Local Retail and Commercial zone.
- I am satisfied, on the basis of Mr Powell’s evidence, that the proposal, although not residential or within reasonable expectations (given the zoning) in overall scale will be adequately screened and treated and is otherwise so designed that, given its context, it would not have a significant detrimental impact upon the character or amenity of the locality (existing or planned) or on the amenity of any existing or future residential uses or upon the streetscape. To the extent there is any non-compliance with the provisions relating to these issues, it would not be accompanied by a significant undue impact which, in the circumstances, would cause me to refuse the development application if there was a good case otherwise for its approval. Whilst the proposal would represent visual improvement on the current building on the subject site, I do not regard its virtues in that regard, as of such significance as to substantially weigh in favour of approval.
The centres network
- Attention then turns to the first of the specific outcomes for the Urban Areas, which relates to centres. As stated in the Strategic Framework there is a focus, in the planning scheme, for commercial activity within Ipswich directed towards development of the local government area as a “City of Centres”. This finds reflection in s 4.3.3(a) of the Specific Outcomes for the Urban Areas as a whole, which provides:
“(a)A network of centres is established which—
- (i)supports the development of the Ipswich City Centre as a Key Centre for the Western Sub Region of South East Queensland;
- (ii)supports and provides for Major Centres at Booval, Brassall, Goodna, Redbank Plains, Redbank Plaza, Ripley, Rosewood, Springfield Town Centre (refer Part 14), Yamanto and Walloon, to service the main convenience and comparison-shopping needs of the City’s residents;
- (iii)supports and provides for the distribution of neighbourhood centres and local shopping areas, which mainly cater for convenience shopping and local services, across the City and generally within the locations depicted on Map 3 in Schedule 7.”
- The importance of centres planning and, in particular, of giving due respect to that planning in the context of decision-making on development applications, is well established by decisions both of this Court and of the Court of Appeal. The centres network or hierarchy was described by Mr Buckley as a town planning principle that is the “backbone” or “core” around which other land uses are allocated and that the number and location of centres are “critical land use planning decisions”. Mr Buckley said that:
“There are well accepted planning principles which apply in respect of the preferred location and size of centres.
…For centres planning, achieving an equitable distribution of centres of different sizes and functions which ensure that the population has reasonable access to the different level of services provided by different centres, is the primary purpose that drives the location size and function of centres.
These ‘drivers’ anticipate that centres will be:
- (a)of a size commensurate with the catchment they are intended to serve, and in response to that catchment’s economic capacity to support the level of services;
- (b)of a number and type where there is reasonable choice and inherent competition;
- (c)central to the catchment they are intended to serve;
- (d)well separated to avoid duplication and adverse impacts on existing and planned facilities;
- (e)accessible by all modes of transport; and
- (f)located and designed in a manner that optimises their physical and operational relationship with usually adjoining residential uses, encourages co-location with community uses, and which minimises adverse cross-boundary amenity impacts.
…The outcome of producing this network (almost always hierarchical in form) is not just the act of drawing a line around a likely trade area. It is necessary to ensure both the viability and vitality of each centre so as the community will have access to sustainable centres at each level of the network/hierarchy.”
Mr Schomburgk, Mr Mewing and Mr Duane, (the economist called by the appellants)  agreed with Mr Buckley’s views, which I also accept. As Mr Duane accepted, a centres hierarchy also provides investment certainty for State and local governments and private investment.
- Of particular note, in the case of the centres network planning for Ipswich, is its level of detail. Not only does it set the levels of the hierarchy within the network, describe their relative functions and nominate the key centre and the major centres, but it goes on to a mapping exercise down to the neighbourhood centre level for both existing and proposed centres, by reference to Map 3 in Schedule 7 (Map 3) which shows the locations of:
- (i)Proposed District centres;
- (ii)Existing Major Suburban Centres;
- (iii)Proposed Major Suburban Centres;
- (iv)Existing Major Neighbourhood Centres;
- (v)Proposed Major Neighbourhood Centres;
- (vi)Existing Local Neighbourhood Centres, and
- (vii)Proposed Local Neighbourhood Centres.
- The locations are mapped in an indicative and symbolic (rather than cadastrally- based) way, by differently sized and coloured spots on the map, depending upon the type of centre, but the level of detail of the planning in relation to the network, as it exists and as it is proposed for the future, is remarkable. Mr Schomburgk said, it is “up there with the best of them, the most detailed that I’ve seen.” Mr Ganley, (the economist called by the respondents-by-election) pointed out that the proposed centres are generally in areas where there is, or is expected to be, relatively high population growth.
- The appellant’s proposal is, in terms of its scale, for a new major neighbourhood centre, such centres being described, in the planning scheme, as providing for retail/commercial space in the range of 2000 – 6000m² of gross floor area. It is however, on a site which does not fall within any of the locations mapped for a proposed major neighbourhood centre, or indeed any centre at all. There is no proposed centre designation in the vicinity of the subject site. The hotel, on the opposite corner of the intersection is included in the Local Retail and Commercial Zone, but not within a designated centre.
- There is a designated existing Major Neighbourhood Centre in the locality, being the existing Raceview Major Neighbourhood Centre and upon which the appellants’ proposal would adversely impact (a matter discussed later). Existing development in that centre is contained within land in the Local Retail and Commercial Zone, which straddles both sides of Raceview Street. The proposal could not reasonably be seen to be part of that centre, or an extension thereof (a matter discussed further in the context of planning need). Unsurprisingly, the respondents (and the town planners they called), each contend that the proposal represents out of centre development in terms of the network as planned for in the planning scheme.
- The proposal gets no support from the detailed centres planning undertaken by the Council as the planning authority and shown diagrammatically on Map 3. The words “generally within the locations” depicted on that map, appearing in s 4.3.3(i)(a)(iii) of the Specific Outcome for the urban areas, were pointed to in order to advance a submission, on behalf of the appellant, that new centres outside the locations shown on Map 3 are contemplated by the planning scheme. It was also submitted that the proposal meets the following specific outcomes for the Urban Areas as a whole in relation to neighbourhood centres and local shopping areas in s 4.3.3(1)(b):
- (b)Neighbourhood Centres and local shopping areas are designed and located—
- (i)to take advantage of major entry/exit points to residential communities with good visibility and access from major roads;
- (ii)to be conveniently accessible to the catchment area they are intended to serve;
- (iii)to be conveniently accessible, where possible, to public transport and pedestrian and cycle routes;
- (iv)to provide a focus for community interaction and meet demonstrated community needs;
- (v)where possible, to be near schools, parkland and community facilities in order to form part of a community node; and
- (vi)sized so as not to compromise the viability of higher order centres or other existing or planned neighbourhood centres.
The subject site, were it developed as proposed, would meet (i), (ii), (iii) and (v). The issues raised in (iv) and (vi) are discussed later.
- Reference was also made to the Specific Outcomes for land in the LC1 sub area – Major Neighbourhood Centres – of the Local Retail and Commercial Zone, which include the following provisions of s 4.10.4(1)(d)(ii) in respect of new Major Neighbourhood Centres:
- (ii)New major neighbourhood centres—
- (A)are positioned to take advantage of major entry/exit points to residential communities with primary access from frontage roads;
- (B)are directly accessible and visible to distributor roads and public transport routes and conveniently accessible by bikeways and walkways;
- (C)are conveniently accessible and central, to a catchment with a population range of 5,000 – 15,000 persons;
- (D)provide for retail/commercial space in the range of 2,000 – 6,000 m² of gross floor area with adequate adjacent land to support co-location of community facilities assessed as appropriate in such nodes;
- (E)provide a focus for community interaction and meet demonstrated community needs;
- (F)are sized and located so as not to compromise the viability of higher order centres or other existing or planned neighbourhood centres;
- (G)are located near schools, parkland, and community facilities in order to form part of a community node;
- (H)provide for extensive landscaping around the perimeter; and
- (I)provide adequate off-street parking and shared driveway access.
If those provisions applied, the only issues of potential concern would be (D) – as to co-location, (E) and (F), the issues relevant to which are discussed later.
- There was some debate about whether the provisions of s 4.10.4(1)(d)(ii) apply only to land in the Local Retail and Commercial Zone (which the subject land is not), and LC1 sub-area. They appear within that part of the planning scheme which deals with land so zoned and more specifically within s 4.10.4 which is headed “Effects of Development within Sub-Areas” and then as sub-paragraph (d)(ii) to s 4.10.4(1) which is headed “Sub-Area LCI – Major Neighbourhood Centres”. That suggests that they relate to the development of new centres on land in the zone and within sub-area LC1. It was submitted however, for the appellant, that the provision could not sensibly be confined to that, since a comparison of Map 3 and the zoning maps reveal locations which are planned for future neighbourhood centres but are not currently within the Local Retail and Commercial zone. Further, it was submitted that criteria which include locational requirements would be unnecessary for land already appropriately zoned, since one cannot shift the location of the zoned land and the zoning would already have taken account of locational considerations.
- I do not accept that. Insofar as designated sites not in the zone are concerned, the provisions of s 4.3.3 may be of relevance. Insofar as land in the Local Retail and Commercial zone is concerned, it must be remembered that a Local Retail and Commercial zoning does not confer a right to develop land for a shopping centre. Whilst, subject to meeting certain qualifications, a shopping centre is a consistent use in the zone, a development application is still required. Both the specific outcome in s 4.4.3 of the Urban Areas and the provisions of the Local Retail and Commercial Zone in Division 10 are relevant assessment criteria for such an application.
- There is nothing incongruous or absurd about the provisions of s 4.10.4(1)(d)(ii) applying to applications for the development of a new neighbourhood centre on land in the Local Retail and Commercial Zone. Absent any express extension of the application of the provision, it should not be construed as other than what it purports to be, namely part of the specific outcomes for sub-area LC1 for the Local Retail and Commercial Zone. That is not to exclude the appellant from seeking (as it did)to make something of the extent to which the proposal responds to the provisions which apply to proposals for new neighbourhood centres in a zone where, subject to assessment, they are contemplated, or to exclude the respondent from advancing a submission about a failure to meet criteria that would apply even if the site had the benefit of a zoning more appropriate for the proposed use. The provision is however, not one of general application throughout the planning scheme area and is not directly applicable to the subject application, given the zoning of the subject site. Whether it is or is not directly applicable is not, in any event, determinative in this case. I would have reached the same ultimate conclusion as to how the discretion as to approval or refusal of the development application should be exercised and whether the appeal ought be upheld or dismissed given my findings.
- I do not accept that the proposal is consistent with the centres network in the planning scheme. It has already been observed that the elements of that network, both existing and proposed, have been mapped, in Map 3, down to the existing and proposed Neighbourhood Centre level. The new Neighbourhood Centres envisaged by the scheme are the new planned centres, rather than new unplanned Centres or new centres in unplanned locations. In that regard:
- (i)the strategic framework, in referring to the development of “City of Centres”, refers to a (underlining added) “network of…Neighbourhood Centres and local shopping/commercial areas as shown on Map 3 in Schedule 7”; and
- (ii)Neighbourhood Centres are provided for within the Local Retail and Commercial zone, which zone primarily services the convenience shopping needs of localised population catchments and provides limited access to comparison shopping, speciality shopping, lower order professional offices and business, financial or personal services. The overall outcomes for that zone include that uses and works within the zone support the development of (underlining added) “a network of neighbourhood centres and local retail and commercial areas as depicted in Map 3 in Schedule 7”.
- Whilst, as was pointed out for the appellant, s 4.3.3(1)(a)(iii) speaks of the distribution of Neighbourhood Centres and local shopping areas across the city and “generally” within the locations depicted on Map 3 that should, in context, be understood as an acknowledgement of the symbolic and therefore indicative nature of the mapping, rather than a license to augment the detailed centres network, by the addition of any number of further major Neighbourhood Centres, on land in whatever zone and in whatever location wherever the criteria otherwise sought to be relied on by the appellant can be satisfied.
- The proposal is therefore for:
- (a)a use which the planning scheme regards as inconsistent with the outcomes sought in the prevailing zone and as constituting undesirable development unlikely to be approved, and
- (b)out-of-centre development in terms of the network in the planning scheme.
- That does not mean however, that the proposal necessarily must be refused. I was reminded of what I have said about planning mechanisms, such as retail hierarchies, not existing for their own sake. It was contended, for the appellant, that:
- (i)the site is not needed for future residential development, in accordance with its zoning;
- (ii)there is an economic, community and planning need for the proposal;
- (iii)the proposal would not unduly impact upon the centres network or, in particular, on the existing centres at Raceview or Winston Glades, for which concern was expressed; and
- (iv)development of the site, as proposed, meets the criteria in the planning scheme for new Neighbourhood Centres and the site is otherwise appropriate.
Need for residential land
- It was a point of agreement in the joint need report that the loss of the subject site for its zoned (residential) purpose (in the event the existing use was to cease at some point) would be of limited economic consequence, both from a capacity and choice point of view. Given that evidence (which I accept) and my findings (expressed earlier) that the proposal would not have a significantly detrimental impact on the amenity of existing or future residential development or on the character of the locality, I would not refuse the development application on account of the loss of the land for potential residential development if there was a sufficiently strong case otherwise for permitting the proposed development to occur on the subject site.
General site suitability
- There was no dispute that the subject site is physically suitable for the proposed development. It is also well located, at a major intersection, to afford exposure and to be accessible to those it intends to serve. If one were to accept that the site is to be developed for a full-line supermarket-based centre, it is, as I have found, acceptably designed.
- Some issue was taken with the fact that it is just a full-line supermarket with a small number of specialty tenants. It does not offer, on site or potentially adjacent to it, the opportunity to provide a range of community facilities for it to represent an important community focal point, as befits a major neighbourhood centre. It was pointed out, for the appellant, that there is something of a node of non-residential and compatible residential uses about or proximate to, the intersection, featuring the earlier mentioned hotel and dental surgery and also a school, on the opposite side of the road (between the intersection and the existing Raceview Centre) and a retirement village, in Cascade Street, adjoining the hotel.
- Mr Duane frankly and properly acknowledged that the proposal would not provide or attract other services immediately around it, but saw the proposal as making good what he regarded as a deficiency in the existing Raceview Centre which, whilst providing a significant number and range of tenancies, provides no full-line supermarket.
- Mr Norling (the economist called by the respondent) and Mr Ganley, in the joint report of the economists, acknowledged the “favourable physical features” of the site, but considered they should be balanced against what they saw as lack of need for the proposal and the high levels of economic impacts it would, in their view, generate (matters discussed later). They regarded the site suitability as compromised by those other issues.
- If I was satisfied that there is a sufficient need to call for the provision of a full-line supermarket facility in this locality and to do so at a site, such as the subject site, removed from the existing Raceview centre and that to provide for that by giving an approval now would not unduly impact upon the centres network, or more particularly, centres within that network, but would, as Mr Schomburgk saw it, provide an expanded and consolidated centre at Raceview by development which, to use Mr Duane’s words, would be complementary, then I would be satisfied that the subject site is a suitable location for that development. On that basis the limited components of the proposal or lack of opportunity for it to attract other services immediately around it would not cause me to refuse the proposal to provide a facility for which a specific need (a full-time supermarket) had been established. The determinative issues in the appeal are therefore need and impact, set against the planning scheme provisions that have been discussed.
- The town planners agreed, in their joint report, that there are no relevant matters that would otherwise justify approval if the court were to find that there is no or insufficient need for the proposal. I agree.
- As has already been observed, the subject site is physically suitable for a supermarket development and fronts a significant intersection, giving it visual exposure as well as accessibility to its intended market. It has obvious attractions for an operator. The intended anchor tenant is Woolworths, a well-known, sophisticated and successful operator and the largest food and grocery retailer in the country whose other sites in the wider locality are trading well. It is unsurprising that the economists consider that a full line Woolworths supermarket trading from the subject site would attract sufficient custom to be economically viable. That the site represents a potentially profitable market opportunity for Woolworths may justify the proposal financially, but does not itself establish a sufficient need, particularly a sufficient public or community need, for the facility.
- Mr Duane’s evidence was that there is economic and community need for the proposal. Mr Norling agreed but considers that the level of need is only moderate. Mr Ganly considers that there is no need for the proposal. Both Mr Norling and Mr Ganly consider that the proposal would have unacceptable impacts on both the Raceview and Winston Glades centres. Mr Duane disagrees. The need/impact issues were debated largely by reference to the full-line supermarket component of the proposal.
- Reference was made to s 4.10.2 (2)(d) of the overall outcomes for the Local Retail and Commercial Zone which provides as follows:
“(d) Significant increases in the range of activities or of gross floor area in existing Local Retail and Commercial areas, or proposals to establish new Local Retail and Commercial areas is supported by –
- (i)demonstrated growth in terms of population or disposable income; and
- (ii)a social and economic impact assessment which justifies the increase in the range of activities or gross floor area of the operations.”
- There are two obstacles to finding this provision to be offended. First, it is part of the overall outcomes that are the purpose of the Local Retail and Commercial Zone. That zone does not apply to the subject land. Second, it is unclear what a “Local Retail and Commercial area” is. It is not a defined use or a use class or defined administrative term. Section 4.10.2 (2)(a)(iii), extracted earlier, says that Map 3 depicts a network of neighbourhood centres “and” local retail commercial areas. That suggests that the concepts are distinct. Section 4.10.2(2)(d) makes no reference to centres. Reference to Map 3 however, shows centres but no symbol or shading in the legend for Local Retail and Commercial areas and no designation on the map for them. To the extent that it refers to an area of retail and commercial development that is within the zone but is not a centre (such as the hotel in the LC2 sub-area), it does not seem apt to refer to the appellants’ proposal which is, in substance, for a new unplanned centre on land not within the zone. I have therefore not placed weight upon any non-compliance with that provision, although the issue of need remains relevant.
- In so far as the matters referred to in the provision are of relevance to an assessment of need:
- (i)population growth is discussed later. The area is not one of high population growth, but Mr Duane contends that the population has already got to a point that justifies a further full line supermarket;
- (ii)this is not an area of high growth in disposable income (discussed later). Mr Duane does not rely on growth in disposable income to justify a further full line supermarket;
- (iii)the economic impact of the proposal is discussed later, and
- (iv)no social impact assessment was carried out.
- In their joint report, the economists reached agreement about the main trade area for the proposal. That area is made up of three sectors, namely:
- The primary sector, containing the suburb of Raceview, from which the proposal would attract most of its business and achieve its highest market share;
- The secondary north sector, encompassing part of the suburbs of Silkstone, Blackstone and Eastern Heights, and
- The secondary south sector, comprising the suburb of Flinders View.
- In 2020 there were 23,230 persons in the main trade area, including 11,660 in the primary sector. As Mr Ganly pointed out, ABS estimates for the trade area showed growth consistently slowing, to the point of a minor decrease in the period from 2017 to 2020. Mr Ganly forecast some contraction for the years 2021 and 2022 followed by no growth in 2023 and then modest growth through to 2031. Mr Duane and Mr Norling, on the other hand, forecast continual modest growth. The differences depend on assumptions about migration from the area, the attraction of new residents by the development of new housing, the decrease in the rate of persons per dwelling and trends in interstate migration and international immigration. Such forecasting is not a precise science. Whilst I consider that future growth is more likely to be closer to the Duane/Norling forecast, it is unnecessary for me to dwell on that matter because future growth is, on either scenario, modest. As Mr Duane acknowledged, this is a low growth area. The difference in forecasts is insignificant in explaining the different conclusions reached by the economists in relation to need and impact. The difference in relation to the projected population 2024 (the projected first year of trading for the proposal) is of the order of 1000 persons. The difference for 2031 is less than 1200 persons.
- Mr Duane referred to the typical range of one full line supermarket per 8,000 to 10,000 persons, in order to assert that the primary sector alone could support the proposed new full-line supermarket. That sector is however, part of the agreed main trade area where there is the Winston Glades major neighbourhood centre with a full-line supermarket (Drake’s) in the secondary south sector and the Silkstone village centre in the secondary north sector which, whilst a designated local centre, has a full-line Coles supermarket. Accordingly, at approximately 23,000 to 24,000 persons by 2024, the population of the main trade area would lie at the bottom end of the 1 per 8,000 to 10,000 persons range for three full-line supermarkets.
- The demographics of the population of the main trade area are such that it produces lower than average spending, with spending on food being about 5% below the Brisbane average. Average income levels in the main trade area are lower than the Brisbane average and significantly lower in the primary and secondary north sectors. Average taxable income in 2015/16 to 2018/19 grew at only 1.7% per annum (which is less than National CPI)and there is no basis to assume any higher subsequent growth. Home ownership levels are low, particularly in the primary sector. Mr Duane accepted that it is a relatively low-income trade area for south-east Queensland. In their joint report, the economist assumed only a 1% per annum increase in real spending.
- Mr Duane saw benefit in providing facilities on, if anything, a more generous basis to the less affluent, so they benefit from maximum competition. Whilst one may, at one level, be sympathetic to that philosophy, it is difficult to ignore the reality of the lesser amount of retail expenditure that is available and the low growth nature of the area. Accordingly, I prefer the evidence of Mr Norling and Mr Ganly to the effect that one would be looking more towards the upper end of the range for a population with the characteristics of the agreed main trade area so as to ensure the facilities provide an appropriate level of service. On that basis, the 2024 population falls short of fully justifying an additional full-line supermarket on the 1 per 8,000 – 10,000 persons ratio.
- The point was made that one of the full-line supermarkets in the main trade area is operated by Drakes. At 2461m2 it is smaller than a typical Coles or Woolworths full-line supermarket and has fewer stock keeping units. Its offering has less range and depth (e.g. it may offer two choices of baked beans rather than three), but it has a range of departments that would be considered “full-line” and, as Mr Duane acknowledged, is considered a full-line facility.
- In his report of March 2019, lodged in support of the development application, Mr Duane carried out an assessment of supermarket demand and supply (in terms of floor space) for what he then considered to be the main trade area for the proposal. Mr Ganly considers that to be a more useful approach. Mr Duane used the Brisbane benchmark of 366m2 of floor space per 1000 persons and took account of existing supermarkets of 500m2 or larger within the main trade area. His exercise produced indicative undersupplies of floor space even after provision of the proposal. The main trade area he used at that time, however, was much smaller than that to which he subsequently agreed in the joint report for the purposes of this appeal. It left out of account a significant quantity of floor space that he now accepts is part of the agreed main trade area. In particular, it left out the 4200m2 full line Coles Supermarket at Silkstone Village.
- Mr Ganly re-did the exercise on the basis of the now agreed main trade area (something Mr Duane did not do). In doing so, he also used the Brisbane average provision (i.e. not adjusted for the different demographic of the main trade area) but initially used his own population forecast and took account of supermarkets of 400m2 or more (which, in his view, is more appropriate). That produced an oversupply of 2335m2 in 2024 with the proposal in place. He then re-did the same exercise, but using the population forecast of Mr Duane and Mr Norling. That produced an oversupply of 1942m2 in 2024 with the proposal in place. He then re-did the exercise also adopting Mr Duane’s use of only those supermarkets of 500m2 or more. That produced an oversupply of 1046m2 in 2024 with the proposal in place. As Mr Ganly said this suggests that, without the proposed facility, there is currently only a modest level of undersupply in the main trade area. This is another indicator that the need for a third full line supermarket cannot be fully made out at this stage. That is consistent with Mr Norling’s conclusion.
- It was suggested that some allowance should be made for the fact that the existing full-line supermarkets in the secondary sectors of the main trade area have catchments that extend beyond the main trade area for the proposed centre. Whilst that is true, the exercise also does not take account of the location of other centres proximate to, but beyond, the main trade area that trade into the agreed main trade area for the proposal. As Mr Ganly explained, the exercise deals with what is within the main trade area. The exercises are helpful, but are high-level assessments and are not necessarily definitive.
- Another relevant consideration is the extent to which those who fall within the intended main trade area of the proposed facility have convenient access to facilities located beyond that area. The site is only 3.8 kms from the major suburban centre of Booval Fair, which offers both a Woolworths full line supermarket and an Aldi supermarket. It is 4.1 kms from the key regional centre of Ipswich where there are two Coles full line supermarkets, one Woolworths full line supermarket and one Aldi. It is 5.2 kms from the major suburban centre of Yamanto where there is a Coles full-line supermarket (at Yamanto Central) and a Woolworths full line Supermarket (at Yamanto Village) as well as an Aldi. (which is not full-line). Those existing facilities provide a choice of supermarket operators and centre type. As Mr Norling said, the wider area is well served by full line supermarkets.
- Driving time is an indicator of convenience for residents of the main trade area. Mr Ganly carried out an assessment which revealed that almost all of the residents of the agreed main trade area can currently access two or more full line supermarkets within a five-minute drive time. This suggests that they have reasonably convenient access to full line supermarket shopping facilities.
- Mr Duane pointed out that the provision of a full line supermarket at the subject site would be consistent with what he referred to as a “rule of thumb” 2 km radial separation between full line supermarkets, with the site being 2.5 kms from Winston Glades and 2.3 kms in the opposite direction from Silkstone Village. Whilst I consider the drive time assessment to be more helpful than a radical distance rule of thumb,I accept that, given its spacing relative to other facilitates, there would be those who would find the subject proposal more convenient, in order to access a full-line supermarket relative to the existing facilities. For example, the proposal would enable residents of the suburb of Raceview to undertake their supermarket shopping at a full line facility without having to leave their suburb. I accept that is a relevant consideration. It does not mean however, that the community does not have reasonable access to full line supermarket facilities, or that the fact that there are those who would find the proposed facility more convenient is itself determinative of the issue of need.
- The existing Woolworths supermarkets, in the broader area are trading above average. The Coles at Silkstone is trading at least acceptably, being below the Coles group average referred to by Mr Ganly but a little higher than the national benchmark for supermarkets over 500m² referred to by Mr Duane. The Drakes is, as one would expect for an “independent” operator, trading at a lower turnover per square metre. It performs above the average for its Queensland stores, but below its national average and what was achieved from its store at Winston Glades in the past.
- There is a diversity of operators, providing the environment for choice and competition. Mr Norling however acknowledged that Woolworths is probably underrepresented in the region relative to its largest competitor Coles. The proposal would assist in redressing that relative imbalance.
- A matter of relevance, in relation to choice and convenience, is that the only Woolworths Supermarkets within the broader area are in the higher order centres. The proposal would therefore provide customers who have a preference for Woolworths to access one of their full line supermarkets not only at a location that will be more convenient for some, but at a neighbourhood centre, with its attendant convenience, rather than have to resort to a higher order centre.
- It was also submitted that the proposal would be beneficial for existing retail facilities in the locality including in the existing Raceview Centre. That is discussed later in the context of impacts. For the reasons given the proposal would have an overall significant adverse impact on the existing Raceview Centre.
- An examination of the population proposed to be served and the existing facilitates they enjoy does not fully justify the need for an additional full line supermarket at this time. That sits with Mr Norling’s view that “there may be a gap in the supermarket provision in the order of about half a full line supermarket”. I acknowledge that, leaving any countervailing disbenefits from adverse impacts (discussed later) to one side, the proposal offers some potential benefit in terms of choice, competition and convenience.  Those benefits have been identified. They are not trivial or insignificant. Mr Norling described the level of community need for the proposal as a result of its ability to improve choice, competition and accessibility as “moderate”. I consider that assessment to be somewhat high, given what is currently offered. I find the level of public or community need to be relatively modest. It is insufficient to warrant approval in the circumstances of this case, particularly when viewed in the context of the likely impacts of the proposal (discussed later).
- There was debate about whether, if there were a sufficient need for a further full-line supermarket, there is a planning need to facilitate its provision by approving the subject application. Having regard to the planning scheme provisions discussed earlier, one would expect that such a facility, were it to be provided, would be located as part of the designated centre at Raceview. Mr Schomburgk, in his individual report, acknowledged that a basic town planning principle provides that, where there is a demand for additional centre uses, those uses are provided in the following order of priority:
- (i)ideally within an existing designated centre; or
- (ii)if that is not practical, on land adjacent to an existing designated centre, by which the existing centre is expanded or consolidated; or
- (iii)if neither of the above options are available, in a new centre/remote location.
- I accept that order of priority, subject to the observation that I would substitute the expression “need” for “demand” and add the qualification that it should not be assumed that there is an imperative to accommodate every need, of whatever magnitude, irrespective of countervailing considerations. I note that both Mr Duane and Mr Norling gave evidence to similar effect in relation to the priority for the location of supermarkets relative to centres.
- It has already been observed that the existing centre at Raceview is contained within land in the Local Retail and Commercial zone and straddles both sides of Raceview Street. The part of the centre on the western side of the street is smaller in area and comprises a service station and a service centre with a number of specialty tenancies, mainly newer dining establishments (and a BWS bottle shop) which appear to be trading well. That part of the centre can be put to one side for the consideration of planning need for a full-line supermarket based facility.
- On the eastern side of Raceview Street lies the greater part of the existing Raceview major neighbourhood centre. It is an older style centre of just over a hectare in area. It has a grocery store of about 480m² and a significant number of specialty tenancies providing a wide range of retail and non-retail services. They are arranged in a number of separate strips facing an elongated central car park, with an uneven surface and poor markings. As Mr Norling attested, there are too many specialty tenancies without an anchor tenant. The tenancy mix may be diverse but the tenancies are weak. The centre on this eastern side, is, as Mr Norling said tired, old, uninviting and not consistent with contemporary expectations for shopping centres. It is clearly overdue for redevelopment, particularly redevelopment that would attract and accommodate an anchor tenant, particularly a supermarket anchor, that would not only provide an improved supermarket facility, but also improve the performance of the (weak) specialities and provide the centre with a level of vigour and vibrancy commensurate with a major neighbourhood centre. As has been noted, such centres are intended to provide a focus for community interaction.
- There is currently no room in this eastern part of the centre to accommodate a full- line supermarket. The accommodation of such a use would require substantial redevelopment. Mr Duane considered that a full-line supermarket could not be achieved in a single level development. Mr Norling thought that whether a full-line supermarket could be accommodated would depend on whether basement carparking was accepted. He conceded that basement parking, whilst sometimes utilised, is not preferred by customers or operators and that there would need to be substantial changes, including a reduction of specialities, to achieve such development. Mr Mewing considered that, given the site area, a 2,500 to 3,000m² supermarket could be achieved, with the loss of some specialty tenancies (particularly at the back part of the site) and with the development potentially being piered. Mr Buckley also considered that a full-line supermarket could be achieved with complete redevelopment and the incorporation of basement or tiered car parking and the loss of some specialties.
- Mr Peel, the State Property Manager for Woolworths Group Limited did not consider that a facility within the existing centre, even if able to be accommodated, would meet the needs of Woolworths’ customers, because of issues related to its reliance on basement parking, visibility and access deficiencies including as a result of it not being on a corner location. Woolworths is not however, the only operator of supermarkets.
- The evidence falls short of establishing that the eastern part of the existing centre, which is in need of redevelopment, could not be comprehensively redeveloped in a way that facilitated provision of a full-line supermarket with fewer specialties or that it would be impossible to find an operator interested in such a proposal. It must be acknowledged however, that the achievement of that redevelopment would not be a straight forward exercise, that there is no suggestion of any plans afoot to do so nor any interest in doing so by the proprietors of the site or by a potential full-line supermarket operator. It is a future possibility that could not be entirely discounted, but appears to be unlikely to be realised, at least in the short term. Accordingly, to the extent I was satisfied that there is a present need, which ought now be met, I would also be satisfied that there is a planning need to accommodate that need beyond the bounds of the Local Retail and Commercial Zoned Land upon which stands the existing designated centre at Raceview.
- It was suggested, on behalf of the respondents, that to the extent that there is an insufficiency of space within the existing zoned land, there is an opportunity to expand the existing centre onto the vacant land directly adjoining its southern boundary (the Glode land). That land:
- (i)affords, in a physical sense, an opportunity for expansion;
- (ii)has been the subject of past interest for potential development, including for a full-line supermarket, and
- (iii)was, together with the existing centre, mapped as within a local centre land use designation under the Council’s statement of proposals, published in 2019, with respect to its proposed new planning scheme.
- It was said in support of the appellant’s proposal that:
- (i)Woolworths has no interest in locating on that land irrespective of the outcome of this appeal;
- (ii)there would, at the least, be difficulties in achieving a satisfactory full-line supermarket development on that land;
- (iii)the site is not currently appropriately zoned and no weight should be placed on the designation in the statement of proposals, and
- (iv)the subject site is effectively itself “adjacent” to the existing centre and will provide for an expanded and consolidated centre.
- I reject the last of those propositions. Whilst the distance between the subject site and the existing centre is not great, the extent of physical separation, with intervening (mostly residential) land uses, which Mr Buckley colourfully described as “no man’s land” is not insignificant. Further, as Mr Norling pointed out, it is not simply a question of physical adjacency, but also whether appropriate integration is achieved. Whilst the proposal would add to the range of facilities available to the public within the locality, as Mr Norling said, the proposed facility and the existing centre would not operate together as a coherent facility. They would be two centres. The effect that the proposed centre would have on the existing centre is discussed later but, for the reasons given, would be significantly adverse. The proposal is best characterised as representing a separate facility, with a likely significantly adverse effect on the existing centre, rather than a complementary facility providing for an expanded and consolidated centre.
- There has been past interest in the use of the Glode land for potential development including for a full-line supermarket. On 27 September 2013, Coles Group Property Development Limited made a development application (the Coles application) seeking approval for a material change of use to facilitate the development of a 3,700m full-line Coles supermarket with associated car parking on that land. The design facilitated pedestrian and vehicular movement between the proposal and the existing centre on the eastern side of Raceview Street. The proposal would have relied upon the permanent closure of Carlita Place. The Department of Natural Resources and Mines gave its consent to the making of the development application, but noted that an approval for the road closure would also have been required under the Land Act 1994.
- The Coles application was the subject of an information request by the Council on 1 November 2013, to which a response was provided on 3 April 2014. A more confined request for further information was sent on 1 May 2014 and responded on 25 June 2015. That response addressed each of the further requests and concluded with a statement asserting that all of the requested information had been provided and requesting the Council to assess the application. Notwithstanding that request, the Coles application was withdrawn on 2 July 2015.
- The reason for the withdrawal of the Coles application is unknown. It cannot be assumed to be on account of site unsuitability. The correspondence before the court does not establish that. The withdrawal of the Coles application occurred proximate in time to the approval of the Silkstone Village Centre, which accommodates a 4,200m² full-line Coles supermarket. That approval provides a possible plausible explanation for the withdrawal of the Coles application on the Glode land.
- At the commencement of the hearing, statements of Ms Redmond, the Regional Property Manager for Woolworths Group Limited, dated 23 September 2021 and 20 October 2021 were admitted into evidence. The latter was to the effect that she had recently resigned, with effect from 5 November 2021. A statement of Mr Peel, the State Property Manager for Woolworths Group Limited, dated 20 October 2021 was also admitted. His statement was to the effect that he would manage and be responsible for the Raceview site once Ms Redmond’s resignation took effect and pending the appointment of her successor. The statement went on to adopt the opinions in her statement. Each said that they were authorised to make the statements on behalf of Woolworths.
- In her primary statement Ms Redmond said, amongst other things that:
- (i)the proposal is designed to fill an obvious gap in the Woolworths’ store network;
- (ii)in her view, there is such a gap at Raceview and Woolworths has been actively looking for a site in the Raceview area for more than five years, because her predecessors and ‘the business’ shared her view;
- (iii)the subject site initially came to her attention in about April 2019 (she commenced her role in Mach 2019);
- (iv)she is not aware of any other site in the catchment that fulfills the requirements that the subject site does;
- (v)she is aware that other developers, including Coles, have previously investigated and made development applications over the Glode land, but she regards it as an undesirable location for a full-line supermarket. In particular it has a number of constraints including with respect to visibility, vehicle access, lot size, the need to achieve a closure of Carlita Place and taking access through the existing centre;
- (vi)Woolworths would have no interest in operating a supermarket on the Glode land even if the subject application is unsuccessful.
- What the initial statements of Ms Redmond and Mr Peel did not disclose is that Woolworths had itself previously expressed interest in developing the Glode land. That interest was ultimately detailed in a subsequent statement from Mr Peel, dated 29 October 2021, the preparation of which appears to have been prompted by a request made by the respondent for further disclosure. The further statement reveals, amongst other things, that:
- (i)the “Woolworths team” have been investigating the site of the existing Raceview Shopping Centre since at least 2007;
- (ii)in 2007 a series a preliminary sketches were produced which showed a potential full-line supermarket development within the existing eastern part of the centre, but Woolworths did not pursue any such proposal which, from his perspective, would not meet the needs of Woolworths’ customers;
- (iii)in his time as Regional Property Manager he was involved in the consideration of other sites within the Raceview locality until 2017 when he was appointed the National Property Manager for Big W. Over a period of years commencing in 2010, Woolworths expressed an interest in developing a new supermarket at Raceview including on the Glode land;
- (iv)in 2011 Woolworths was involved in seeking to purchase the Glode land and, in that context, obtained property committee approval for the site and also conducted a pre-lodgement meeting with the Council in which the constraints and issues associated with the potential development were discussed. Ultimately however, Woolworths was “gazumped “ by Coles;
- (v)following the withdrawal of the Coles application in 2015, Woolworths re-enlivened its interest in the Glode land. It made an offer to purchase the land and held another pre-lodgement meeting with the Council on 29 February 2016;
- (vi)Mr Peel nevertheless remains of the view that the Glode land is not a suitable site and would not recommend it for Board approval while he remains in his role.
- The non-disclosure of Woolworths’ previous interest in the Glode land in the statements initially admitted into evidence is lamentable. Ms Redmond explained that she was unaware of such matters, since they took place prior to her appointment in March 2019, whilst Mr Peel said that he had understood that the purpose of his statement was to read and consider the statement of Ms Redmond in order to confirm or otherwise whether he agreed with her views, given her impending resignation. He said he would have included the information in relation to Woolworths’ past interest had he known of its importance.
- It is difficult to understand how anyone in the position of Mr Peel could have read the primary statement of Ms Redmond without realizing her ignorance of Woolworths’ past interest in the site or the need to inform her of that detail, particularly given her reference to the past interest of Coles. It is also difficult to accept, without questioning the efforts to make due enquiry, Ms Redmond’s explanation of ignorance of matters that occurred before her time when she otherwise speaks of the previous Coles interest, of Woolworths’ actively looking for a site for five years and the views of her predecessors. I note however, that she said she believes she did all she was able with the files “we had on our system”. Further, Woolworths, and, in particular, its property development arm Fabcot Pty Ltd, is an experienced litigant in this Court and would not be expected to put before the court statements said to have been authorised to be made on its behalf by those who have not obtained or been informed of, or have not disclosed, relevant matters.
- I do not however, find that there has been any deliberate attempt to mislead the court. I accept that Ms Redmond and Mr Peel’s opinions are as they state. I accept that Woolworths has no current interest in the Glode land. As the history demonstrates however, development interests and intentions are subject to change from time to time, as are the personnel who occupy positions of responsibility for making recommendations.
- Mr Schomburgk expressed the view that difficulty would attend realisation of development of the Glode land as an extension of the existing centre in order to accommodate a supermarket. As Mr Mewing attested, while there would be issues to be addressed (as indeed Coles purported to do in response to information requests) there is nothing to demonstrate that there are difficulties that would necessarily be insurmountable in the course of an application process. Mr Schomburgk thought it telling that the “biggest players” had looked at the site at least once and walked away from it, but as has been observed, the withdrawal of the Coles application cannot be assumed to be because of site unsuitability.
- The current zoning of the Glode land cannot be ignored. The land shares the same zoning as the subject site. Accordingly, development of it for shopping centre purposes, or even for a stand-alone full-line supermarket, would be for a use which is inconsistent with the outcomes sought in the zone and constitute undesirable development which the planning scheme says is unlikely to be approved. Whilst the statement of proposals deals with the land in a different way, that statement, which was notified in 2019, is a step at a very early stage in the path towards a new planning scheme and I would afford it little weight beyond signifying that, in the process of preparation of the new planning scheme, the Council is likely to give consideration to whether it is desirable and appropriate to facilitate the physical expansion of the eastern part of the existing Raceview centre by altering the zoning/designation of the Glode land.
- Absent the subject proposal there might be, in the future, an opportunity to accommodate development, including a full-line supermarket, in an expanded centre onto the Glode land. Whilst I am not persuaded that difficulties with developing the site (other than its treatment in the planning scheme) are necessarily insurmountable or that interest by a prospective full-line supermarket operator can be excluded, there is no suggestion of any present proposal or interest in such a development and, as I have observed, I would afford little weight to the designation in the statement of proposals. The opportunity on the Glode land therefore appears also to be in the realms of a future possibility, rather than something likely to be realised, at least in the short term. Accordingly, if I was persuaded that there was a sufficient need to warrant the provision of a full-line supermarket in the locality (but beyond the boundaries of the existing centre) at this time notwithstanding countervailing considerations, I would not place reliance on the possibility of future expansion of the existing centre onto the Glode land in order to deny a planning need at this time.
- A key issue between the parties is the acceptability or otherwise of the likely economic impacts of the proposal on the centre network and centres within the network, particularly the existing centres at Raceview and at Winston Glades. In his individual report, Mr Schomburgk confirmed that he agreed with Mr Buckley about the fundamental principles of centre development, but parted company with him about the impact of the proposal on the Council’s preferred strategy and network of centres. He went on to say that the point of departure rests, to a large extent, upon whether the economic impacts of the proposal on the existing centre are within acceptable bounds.
- The centres for which concern was expressed are not the only centres that would suffer some impact. The proposal will also draw custom from existing centres that have either a Coles or a Woolworths full-line supermarket. Indeed, expressed in dollar terms (rather than as a percentage of current turnover), there are other centres with greater turnover which might lose more. The concern for the Raceview and Winston Glades centres arise by reason not just of the quantum of the likely impact expressed as a percentage of their (lower) turnover, but because of their vulnerability, for the reasons discussed later.
- The appellant’s case is that the proposal would not have undue adverse impacts on the centres for which concerns were raised. It was also submitted however, that even on a worst-case scenario, the proposal would, from the community’s perspective, make good any loss that would otherwise arise. The court was reminded that it is not its role to prevent economic competition per se. Reference was made to the well known High Court authority of Kentucky Fried Chicken v Gantidis where it was said:
“If the shopping facilities presently enjoyed by a community or planned for in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing business are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect on the extent and adequacy of the facilities available to the local community if the development be proceeded with, will not be relevant to town planning considerations”.
- That case was concerned with prospective competition between an existing take-away food premises and a proposed Kentucky Fried Chicken outlet. The passage remains good law in relation to the relevance of competition from a first principles perspective. Having regard to the age of the case (and its subject matter) however, it is unsurprising that it does not deal with the consequences of economic impact in the context of a contemporary planning scheme featuring a planned network of centres. In such a context an attempt to simply compare what is offered by a proposed new facility, outside the planned network, to what would be lost or unduly affected within the network, fails to bring to account the public interest in the planned network and the centres which comprise it, as expressed through the planning scheme provisions. Senior counsel for the appellant acknowledged that one cannot apply the above passage without regard for what the planning scheme says about the centres network.
- It was submitted, for the appellant, that the proposal would have a net effect of strengthening the Raceview Centre. In support of that submission reliance was placed on Mr Duane’s evidence to the effect that, at most, only four or five specialty tenancies (from a total of 30) are likely to be adversely impacted by the proposal, with other tenancies within the existing centre benefiting from the additional customer base that would be generated by Woolworths. That is, tenants of the existing centre would benefit from additional customers undertaking their full-line supermarket shop in Raceview at the subject site, rather than elsewhere. Those customers would then be available to also be attracted to the tenants in the existing centre as part of their trip.
- Whilst, in the joint report, Mr Ganly expressed the view that the separation between the subject site and the existing centre would negate cross-shopping benefits, he confirmed, in cross-examination, that there would be some such benefits. Mr Norling attested that his assessment took account of the retention of money currently going to centres elsewhere.
- I accept that the proposal would bring some such benefit for surviving tenants of the existing centre, but the magnitude of that benefit should not be overstated. Each of the economists predicted that the proposal would have an overall net adverse economic impact on the existing centre. The projections for 2024 ranged from minus 10% in the case of Mr Duane to minus 17.5% in the case of Mr Ganly. Mr Norling’s prediction was minus 16.5%. Given such predictions it is difficult to accept the proposal would lead to a strengthening of the existing centre.
- Mr Duane’s prediction of a minus 10% impact upon the existing Raceview Centre was, as it happens, exactly the same percentage negative impact that he predicted for Winston Glades and is, as it happens, a percentage level of impact up to which is often accepted as falling within a normal competitive range, which is how he described the likely overall impact on the existing Raceview Centre and indeed generally, in the joint report. By comparison, impacts of 10% - 15% are often said to be high, and need to be looked at carefully, but are potentially sustainable depending on matters such as the strong trading performance of the facility concerned or if the area is one of high residential growth (which this one is not).
- In this case Mr Duane considered that:
- (i)the non-retail tenants will be unaffected;
- (ii)the BWS, if relocated to the proposal rather than duplicated, would likely be replaced by a food catering tenancy;
- (iii)the bakery and butcher would have their own customer base, but would be impacted;
- (iv)the grocery store would be impacted, but such stores can operate in close proximity to major supermarkets and few other specialities sit near it or rely on it for patronage, and
- (v)few specialities would be replicated in the proposal.
- Mr Ganly considered that the likely economic impact on the existing centre would be significantly higher than 10%. He pointed out that the impact on the grocery store would be much higher (he thought in excess of minus 30%), calling its viability into doubt. He saw the impact on it as more significant for the centre than did Mr Duane, pointing out that it shares the same car park as the tenancies on the eastern side of the centre and, from his observations, there is significant cross-patronage between it and other tenancies. I do however, accept Mr Norling’s evidence that it is not successfully anchoring the centre.
- Mr Ganly also pointed to the trend towards full-time supermarkets such as Woolworths adopting a “hyper-convenience model,” pursuant to which they incorporate an expanded offer to maximise the capture of expenditure which might otherwise have gone elsewhere, whether that is to another supermarket or to specialities.
- Mr Norling also considered that the economic impact of the proposal upon the Raceview Centre would be greater than Mr Duane projected. Mr Norling’s projection was influenced by the proximity of the proposal to the existing centre and by what he saw as the vulnerability of its eastern retail tenancies to strong competition from the proposed supermarket and its supporting shops.
- Whilst, in the joint report, Mr Duane spoke of the “strong mix” of retail and non-retail facilities in addition to the grocery store in the existing centre, both Mr Ganley and Mr Norling disagreed with that description. As Mr Norling said,the eastern part of the existing centre comprises a range of weak tenants with poor stock levels, particular the grocery store which, at times, was described as the anchor of that centre, but is not a successful one. I accept that description.
- As Mr Norling said during cross-examination, some one third of the 480m² grocery store is not accessible to members of the public. The area where shelves are stocked and available features shelving that is low in both height and stock level. During his inspections both the shop and the centre were quiet. The generally old and tired presentation of the centre has already been noted.
- It is understandable, in the circumstances, that Mr Norling described the eastern retail tenancies as vulnerable to strong competition from the proposal and sees a real risk, in the event of the proposal proceeding, of the loss of the grocery store and other specialty tenants, with doubtful prospects of replacing them. In his testimony he was somewhat more emphatic that “a grocery can’t survive” and “there’d be more vacancies”. Those vacancies could include tenancies now occupied by businesses such as the pharmacy, newsagency or baker that are significant attracters of people to the centre. Vacancies caused by the adverse impact on viability would obviously have a consequent eroding effect on the centre’s performance of its intended role.
- Whilst the prediction of economic impact, expressed in percentage terms, is not a precise science, I find that the level of adverse impact on the existing centre as a whole is likely to more closely approximate the predictions of Mr Ganly and Mr Norling than that of Mr Duane who, in my view, underestimated the likely economic effect of the proposal on the existing centre relative to the potential benefits of cross-shopping. I also prefer the evidence of Mr Ganly and especially that of Mr Norling in relation to the likely effects of that impact.
- One likely consequence of the adverse economic impact on the centre would be more vacancies, due to the adverse impacts on tenant viability. Further if, for example, the bakery were to be lost by reason of the competitive impact of a bakery in the proposed centre, it may have to be replaced with a non-retail tenant. In this way as Mr Norling explained, the loss of retail tenancies in the existing centre, due to the adverse economic impact of the proposal, is prone to lead to a weaker tenancy mix for the centre as a whole, with obvious consequences for the centre in the performance of its intended role.
- In the circumstances the likely level of impact of the proposal on the existing centre and its effect is best described as compromising rather than within the bounds of normal competition. It is, I am satisfied, beyond the bounds of acceptability.
- The realisation of the proposal would have yet a further adverse consequence for the eastern part of the Raceview Centre. The problems with that part of the centre have already been traversed. It is adversely affected by its overdue need for redevelopment and the absence of an effective anchor tenant, particularly an effective supermarket anchor that would improve the strength of the centre and assist it in serving its intended role within the network of centres. The future possibilities of achieving redevelopment, with or without the Glode land, to accommodate a full-line supermarket have been canvassed. As Mr Norling attested however, there are other options to address the deficiency. A more modest redevelopment, within the bounds of the existing centre, could be carried out to accommodate a smaller, but still significant, supermarket such as, for example, an Aldi or a Super IGA of about 1,500m² to 2,000m², to provide improved supermarket facilities (albeit not full-line) to serve the community at the designated centre in a way that addresses the centre’s issues. Mr Buckley similarly considered that the appropriate regeneration might occur with a food and grocery anchor tenant that is not full-line.
- The proposed development would not only have a very substantial (and in my view unacceptable) adverse economic impact on the existing centre, but as Mr Norling attested, it would compromise any potential for the needed redevelopment of the eastern part of the centre to accommodate an effective supermarket anchor of any type, be that a larger grocery store, a medium-sized supermarket or a full-line supermarket. It would effectively remove any incentive or, as he put it, remove the “key driver” for such redevelopment. The proposal would not only compromise the centre, as it exists, by reason of its economic impacts, but would, in this way, also compromise its potential to address its existing deficiencies as well. That reinforces the conclusion that the impacts of the proposal on the existing Raceview centre are unacceptable, given its status and intended function in the network of centres provided for under the planning scheme.
- The proposal would also compete with the facilities at the Winston Glade Centre, which was built by the first co-respondent by election and opened in 1998. It is a supermarket-based centre with a mini-major (422m² Tivoli) and a range of retail and non-retail specialities. It underwent a refurbishment in 2016 and is subject to ongoing investment with $500,000 having been spent since the beginning of 2021. The Centre, including the Drakes Supermarket, presents well, but has a higher than average vacancy rate for the specialities, which adversely affects its vibrancy. Attempts are, of course, being made to fill the vacancies and Ms Leavy was dealing with prospective tenants at the time she gave evidence. As Mr Norling and Mr Ganly point out the Centre suffers from a location that is not exposed to high traffic volumes.
- The Centre is managed by Current Finance Pty Ltd trading as JKM Retail, the management company for retail assets owned by the first co-respondent by election. Those assets also include the Yamanto Central Shopping Centre, located approximately two kilometres west of Winston Glades. It opened in April 2021 and is anchored by a Kmart, and a full-line Coles Supermarket. The speciality tenancies are still in the process of being tenanted with many still vacant.
- The respondents and the economists they called, expressed concern about the economic impact the proposal would have on the Winston Glades Centre, given its vulnerability in that it is, at this time, absorbing the impact of the opening of the facilities at Yamanto Central. That the first co-respondent by election owns both of those existing facilities does not invalidate that concern. It could make no difference to the respondent’s concern. There is no reason why the co-respondent by election ought not be permitted to complain about the likely effects of the economic impact of a proposed new unplanned facility, simply because it has developed two facilities, in planned locations within the network as provided for in the planning scheme, which have some impact upon each other.
- There was an attempt to render irrelevant the concern about the economic impacts of the proposal on the Winston Glades facility on the basis that the proposal would have little or no different impact than if the designated existing Raceview major neighbourhood centre was itself redeveloped in a way that accommodated a full-line supermarket. I do not accept that submission. First, there is no proposal for a full-line supermarket to locate in the existing Raceview Centre and the appellant’s case is that Woolworths will not locate there and that it is unlikely that anyone else will. Second, redevelopment of that kind would require approval, even within the Local Retail and Commercial-zoned land. Third, and in any event, the concern is about the effect of impact of a proposed new unplanned facility at this point in time, not the notional development of a similar facility at the existing Raceview Centre at a future indeterminate time when the facilities at Winston Glade might be less vulnerable. Mr Maszeros, the Queensland Manager for Drakes supermarkets, gave evidence that, in this regard, “timing is a big key”.
- It has already been noted that Mr Duane’s assessment of the likely impact of the proposal on the Winston Glades Centre is, as for the Raceview Centre, minus 10%. It should be understood however, that this is on top of his assessment of the likely impact of Yamanto Central, which, in his view, will rob the Winston Glades Centre of the growth in sales it would otherwise have achieved in the years from 2020 to 2024. That is, the minus 10% impact of the proposal is an impact on the Yamanto Centre impacted 2024 performance of Winston Glades. Mr Ganly predicted that the impact from the proposal alone would be minus 15.6% .
- Mr Norling forecast only a minus 6.4% impact from the proposal itself. In his testimony, he confirmed his view that, in relation to the impacts of the proposal alone, the impacts on centres other than the Raceview Centre would be within an acceptable range. As the joint report reveals however, Mr Norling saw that impact is bringing the cumulative impact on Winston Glades to minus 19.8%, being the largest of the cumulative impacts in percentage terms. It is an impact he saw as “significant” and “of concern”. In his conclusions in the joint report he described the impacts upon both the Raceview and Winston Glades centres as unacceptable.
- Whilst there would be impact on the specialities, the most serious concern, in relation to the Winston Glades Centre, is the potential for the proposal to jeopardise the ability of the Centre to retain the current full-line supermarket anchor or to attract any suitable replacement in the event of its loss. The current anchor is Drakes, which operates more than 50 stores across South Australia and has 21 stores in Queensland. It has an annual turnover in excess of $1billion. It has been the anchor in Winston Glades since 2012. The previous supermarket anchors have been Franklins, Action and Cornett’s Super IGA. The anchor tenant is obviously crucial to the Centre.
- This concern is understandable because, as Mr Ganly pointed out (and I accept):
- (i)Other than for the extraordinary COVID-19 period, the Drakes store has suffered significant sales declines in recent years notwithstanding a refurbishment in 2016 This includes a significant sales decline since the opening of Coles at Silkstone (2017) and the Coles at Ripley Valley (2018);
- (ii)the Drakes’ lease expires in December 2024 (it has an option to renew) at the very time when the impacts of the proposal would be most severe;
- (iii)there would be few, if any, other full-line supermarket operators willing to take over the store at the expiry of the lease, noting that Drakes took over from Queensland’s other major independent supermarket operator in 2012 and prior to significant increases in competition being introduced into the region; and
- (iv)the balance of the tenants in the Winston Glades Centre rely largely the foot traffic generated by Drakes for their viability.
Mr Ganley’s opinion is that the proposal would likely lead to Drakes choosing not to exercise its option.
- Ms Leavy, said in her statement
“45. If the Fabcot proposal were to proceed, and if it were to transpire that we lose Drakes, it would be difficult to attract another supermarket operator. The Winston Glades Centre in which we have invested heavily (as a planned centre) may well fail completely, or at the very least, suffer to the extent that it would no longer provide the levels of service to the local population in this convenient location.
- Back-filling the space currently occupied by the Drakes Supermarket with other tenants would also be both difficult and likely uneconomical. …”
- Ms Leavy expressed a lack of confidence in having Drakes renew its lease if the proposal proceeds. An attempt to have Drakes consider an early renewal in late 2020 was met with the response that Drakes was not prepared to consider exercising its option until the fate of the subject application was known. Mr Meszeros, confirmed that attitude and expressed a lack of confidence that the business at Winston Glades would remain viable, in the face of the proposed development, such that Drakes may well decide against exercising its option. He had a minus 20% to minus 30% impact in mind. That sits within the minus 22% prediction of Mr Ganley, the only economist who made a quantitative assessment of the likely impact on the Drakes supermarket.
- Mr Duane accepted, in the course of cross-examination, that the continued operation of the Winston Glades Centre, with a supermarket, is a matter of importance, because it is an existing centre that provides a level of service, within the hierarchy, to the population around it. He also, in the joint report, expressed the view that the Drakes Supermarket would be the tenant at Winston Glades which would experience “the key loss in business”. That loss would, as he readily conceded in cross-examination, be higher than the 10% he predicted for the Centre as a whole, because the proposed Woolworths would compete “head to head” with the Drakes supermarket.  Nevertheless, he did not provide any quantitative assessment for the level of impact on Drakes. Instead, in the joint report, he observed that:
“Drakes is an experienced supermarket operator competing against Coles and Woolworths stores across Australia in many environments. It is also the only Drakes supermarket within the immediate Ipswich south area and Drakes would have a loyal customer-base, able to maintain a viable level of sales.”
- Mr Duane went on, having set out some facts about the Drakes’ business as a whole, to add that:
“clearly Drakes is a significant business which regularly competes with Woolworths and Coles Supermarkets in South Australia. In Queensland, further avenues are being explored to improve its competitiveness.”
- I do not consider that Drakes’ general competitiveness can confidently be relied upon to necessarily save the day in so far as withstanding the cumulative impacts of the proposal, in addition to Yamanto Central, on its store at Winston Glades is concerned.
- Reference was made, in the course of the evidence, to other locations where Drakes have variously maintained stores in proximity to competition, or have withdrawn, or intend to withdraw, from such locations. I have no doubt that the decision as to whether Drakes exercises its option will, as Mr Meszeros attested, be a commercial decision made after the assessment of the impact of the proposal, should it proceed. One cannot assume that Drakes will be able to compete at this location because it does so at some other locations.
- There was an attack on the extent to which Drakes is vulnerable, particularly by reason of the recent opening of Yamanto Central. In the joint report Mr Norling had put the likely impact of that on the Winston Glades Centre at minus 14.2% by 2024 (which would mean that the impact on the Drakes supermarket would be greater). That compares with Mr Ganley’s prediction of the likely impact on the Drakes’ Supermarket at minus 16% in ear 1 and minus 1.5% in Year 2 by reason of Coles Yamanto (and a minus 22% in year 1 and minus 2.5% in year 2 impact from the proposal). In the joint report Mr Duane argued that Mr Ganley’s predictions are too high, because they are higher than that experienced from the opening of Coles at Silkstone and at Ripley Valley, that the impact of a proposal would be on more comparable stores (Coles and Woolworths) and spread across a region with more supermarkets.
- As Mr Norling had pointed out in the joint report in relation to the impacts of Yamanto Central:
“Whilst the largest dollar impacts are expected to be directed towards the Ipswich key regional centre, the existing elements of the Yamanto Major Centre and the Booval Major Centre, the largest percentage impact is likely to be directed to Winston Glades, due to its proximity and current performance levels.”
The turnover at Winston Glades is a fraction of that at the other centres referred to and the turnover of the Drakes is obviously lower than that of the Coles and Woolworths supermarkets.
- Otherwise, as Mr Ganly explained:
- (i)the Coles at Yamanto is significantly closer than either Silkstone or Ripley Valley; yet
- (ii)the observed impact of Ripley Valley was minus 15.4% on Drakes and, in the case of Silkstone Village was minus 11.7% in Year 1 once the benefit of the Winston Glades refurbishment passed and minus 4.4% in Year 2.”
- Having been supplied with updated information, including monthly sales figures for tenants at Winston Glades and Yamanto Central, as well as sales and tenancy data for Yamanto, Mr Ganly, in his individual report:
- (i)observed the slow rate of leasing of tenancies at Yamanto Central;
- (ii)observed that the Coles at Yamanto was trading below expectations, by about 10%;
- (iii)said that whilst the impact on Drakes had therefore been somewhat less than expected to date, that will change as the leasing profile at Yamanto Central improves and the sales at Coles improve such that the impact on Winston Glades will be more evenly spread across two years than he had forecast;
- (iv)the net impacts from Yamanto Central will however, remain the same;
- (v)further, the extent to which the Drakes sales had fallen was affected by the fact that the effects of COVID-19 were being “unwound” more slowly than at first thought. The vaccination program should result in a return to normality in 2022;
- (vi)the updated information does not cause him to alter his assessment of the likely adverse impact of the proposal on Drakes in 2024
- (vii)he remains of the opinion that the opening of the proposed Woolworths at Raceview would have a high likelihood of reducing sales recorded at Drakes to a level such that the option to renew would not be exercised. That would have a “catastrophic” impact on Winston Glades.
Mr Ganley’s explanation for the modification of his predictions is plausible.
- Mr Duane provided a table of the impacts of the opening of Coles at Yamanto, which showed impacts for Drakes of minus 11% (April to August) compared with 2020, for Woolworths at Yamanto of minus 12% and a small increase in sales at Woolworths at Booval. This did not cause Mr Ganly to depart from his prediction (subject to the change of view about the impact being more evenly spread). In addition to the points made in his individual report, Mr Ganly pointed to the increase in sales at Booval in July and August to make the point that the true impact of the Coles at Yamanto is not the decline of relative to 2020, but the decline relative to what the centre would otherwise have achieved.
- The appellant also sought to undermine Mr Ganly’s view about the likely impact of Yamanto upon Winston Glades (and Mr Norling’s as well) by reference to a document, introduced after the conclusion of the evidence of the economists and therefore not put to Mr Ganly (or Mr Norling), by which it was pointed out, through the cross-examination of Mr Maszeros, that the Drakes, in the few months immediately following the opening at Coles at Yamanto Central, achieved sales that, although reduced compared with 2020, were better than the corresponding months in 2019. Mr Maszeros explained that Drakes had done extraordinary advertising promotions at its Centre, to drive custom. Having regard to that evidence and the absence of evidence from the economists about the document and its effect on their views, I am not prepared to rely on it to find that the Coles at Yamanto Central will not have a significant effect on Drakes.
- I do not accept that the impact of Yamanto Central on Winston Glades and, in particular, its anchor tenant Drakes, will be as benign as Mr Duane predicts. I prefer the opinions of Mr Ganly and Mr Norling to the effect that the Winston Glades centre and its anchor will be subject to a significant impact, in the order of their estimates, from Yamanto Central. As Mr Ganly pointed out the conclusion in relation to the anchor tenant is more consistent with the history of impacts on the Drakes supermarket, particularly the impact that was suffered upon the opening of the more distant Coles at Ripley. The consequence is that the Centre will be more vulnerable to the likely impact of the proposal.
- Given that likely level of impact from Yamanto Central, Mr Norling considered that even his relatively modest predicted further impact from the proposal would be sufficient to create a concerning cumulative impact and jeopardise the retention or replacement, at Winston Glades, of the supermarket and some specialities. I do not dismiss that concern, but also consider that both Mr Duane and Mr Norling underestimate the likely further economic impact on the Winston Glades centre by reason of the proposal. Whilst I take Mr Duane’s point about the likely competitiveness of the proposal with the existing Woolworths supermarkets in the broader area, it would still go “head-to-head” with the relatively proximate full-line Drakes supermarket at Winston Glades and, I accept, is likely to have a significant impact on the Winston Glades Centre, in percentage terms.
- I have already noted that Mr Norling saw the cumulative impact as significant and concerning. As has also been noted, the impact of the proposal on the Drakes supermarket would be greater than the impact on the Winston Glades Centre as a whole. It would bear the brunt of the impact. I also accept the evidence of Mr Ganly (the only economist to give a quantitative assessment in this respect) to the effect that the level of impact would be significant and adverse and, I accept, would likely approach his estimate.
- I am not satisfied that the likely impact of the proposal on Winston Glades falls within the bounds of acceptability. The proposal would have its greatest impact at a time when the Winston Glades Centre is vulnerable, by reason of the impact of Yamanto Central and by reason of being in a position where the tenure of its anchor tenant which is critical to the Centre and the one that would bear the brunt of the impact of the proposal, is not secure, because its lease is due for renewal. I am not satisfied that the proposal would do other than compromise the viability of the Centre by compromising its ability to retain or replace its anchor tenant with catastrophic consequences for the future of the Centre and its ability to perform its intended role.
- For the reasons given, I am not satisfied that the likely impacts of the proposal fall within the bounds of acceptability. They would likely be compromising rather than merely competitive. I would reach that conclusion having regard to the impact on either the Raceview Centre or the Winston Glades Centre. That the proposal would have such an impact on both serves to reinforce the conclusion.
- The parties notified “relevant matters” supporting either approval or refusal of the development application, as the case may be. The matters in support of refusal asserted by the respondents were as follows:
- (a)Networks of activity centres and retail hierarchies have been recognised to be an important component of planning schemes to ensure the promotion and protection in the public and community interest of an equitably distributed network of vibrant centres of different sizes and functions;
- (b)The Planning Scheme has made provision for a network of existing and planned centres to cater for the community as a whole including that part of the community which would resort to the proposed unplanned centre;
- (c)The development application is entirely contrary to the network of existing and planned centres within the Planning Scheme; and
- (d)There is no compelling reason to prejudice the Respondent’s existing planning arrangements by:
- Substituting the alternative strategy proposed by the Appellant; and
- Approving the proposed development on the subject land.
- Those matters have already been considered.
- The relevant matters asserted by the appellant were as follows:
There is a planning, community and economic need for the development because:
- (b)There is an unmet demand for supermarket floorspace within the locality and the development will fill a gap for a full line supermarket.
- (c)The development will bring improved choice, convenience and competition for the local community which will:
- (i)result in the retention of spending in the trade area and positively impact upon existing retail facilities in the locality due to additional customer flows created through retained spending; and
- (ii)reduce the need for local residents to travel further afield, and allow residents to conveniently meet their convenience shopping needs regularly and locally;
- (d)The development will create additional jobs.
The proposed development will be established on a site that:
- (a)is highly accessible to the population to be served;
- (b)is highly visible on a prominent intersection, which is easily accessible both in an east-west and north-south direction;
- (c)is well located and within comfortable walking distance to residential communities;
- (d)is conveniently located near to the Bethany Lutheran School;
- (e)enjoys convenient public transport links in close proximity;
- (f)is co-located with other existing non-residential uses; and
- (g)is adjacent to an established retirement community.
The proposed development maintains a scale and appearance in keeping with the residential amenity and character of the locality with appropriate buffering and screening to nearby residential uses, having regard to:
- (a)the longstanding use of the- land in a large and unattractive commercial building; and
- (b)the location of the land on a prominent intersection which is, has historically been and will into the future, be a commercial character.
The use of the land for a non-residential purpose will have little or no impact on the supply of residential land.
Having regard to the historical use of the land, the built form of the proposed development is consistent with reasonable community expectations
The redevelopment of the land for the proposed development will:
- (a)deliver the renewal of a long established commercial site for a needed facility; and
Result in improved visual and other amenity outcomes for the location.
The proposed development is well designed and attractive, with suitable setbacks, appropriate transitions to neighbouring land uses and appropriate landscaping.
To the extent that the Ipswich Planning Scheme makes provision for local centres / neighbourhood centres in this locality, the land zoned for local centres / neighbourhood centres does not or cannot appropriately cater for the convenience shopping needs of the community.
The proposed development can be carried out without any unacceptable impacts.
- Those issues have largely been considered in these reasons. The lack of any unacceptable “hard” amenity impacts (such as noise, lighting etc) is relevant, but not determinative. The employment that would be generated by the proposal is relevant but not something to which I attach great weight. There is nothing in the “relevant matters” relied upon by the appellant that, in the circumstances, persuades me that its proposal ought be approved.
- The proposal is for:
- (a)a use the planning scheme regards as inconsistent with its outcomes in the prevailing zone and as constituting undesirable development unlikely to be approved, and
- (b)out-of-centre development, in terms of the network provided for, to a great degree of detail, in the planning scheme.
- Whilst that does not necessarily mean that the proposal must be refused, and whilst there are considerations in its favour, including relating to general site suitability;
- (i)The need to which the proposal responds is relatively modest, and
- (ii)The likely impacts of the proposal on the network of centres and, in particular, on two of the existing designated centres in that network (at Raceview and at Winston Glades) have not been demonstrated to fall within acceptable bounds.
In those circumstances the matters which weigh in favour of the proposal are, in my view, overwhelmed. I would have reached that view even if regard were had to the impacts only on either the existing Raceview Centre or the Winston Glades Centre.
The appellant has not persuaded me that the discretion ought be exercised in favour of approving the development application. It has not discharged its onus. The appeal is dismissed.
 Ex. 5 – 017, para 14.
 Section 45(1), PECA.
 Section 45(5)(a).
 Section 45(5)(b), PA.
  QPELR 793 at .
 (2020) 246 LGERA 90 at .
  QCA 95 at .
Abeleda & Anor v Brisbane City Council (supra) at .
Elan Capital Corporation Ltd & Anor v Brisbane City Council  QPLR 209 at 211 approved in Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 at ; Family Assets v Gold Coast City Council (2009) 161 LGERA 43 at .
 Consolidated Lit of Issues – as amended – Ex. B.
 Ex. 2.1, pp ll 13 – 14.
 Ex. 2.1, p 29, s 4.1.1.
 Ex. 2.1 p 30, s 4.3.1.
 Ex. 2.1, p 42, s 4.6.5.
 Ex 2.1, p 43, s 4.6.5(3).
 Ex. 2.1, p 40, s 4.6.2(2)(a).
 Ex. 3.4 p 40.
 Which is defined in Schedule 1 of the Planning Scheme (at p 153) in a way that limits its size to no more than 250m² GFA.
 Section 4.3.2(2)(b).
 Section 4,6.2(2)(d)
 Section 4.6.3(3).
 Section 4.10.3(4)(b).
 Section 4.10.3(4) (c).
 Section 4.10.3(4)(e).
 Section 4.10.3(6)(a).
 Section 4.10.3(7)(a).
 Ex. 3.4, paras 157(v), 175, 183.
 Ex. 3.4, para 109.
 Ex 3.4, para 168.
 Ex. 3.4, para 165.
 Which does not itself have a role in development assessment (s 1.5(2)) and is only referred to herein for context.
 Ex. 2.1, p 7, s 1.6(12).
 See for example Australian Capital Holdings Pty Ltd v Mackay City Council & Ors  QCA 157 at  –  per Muir JA (with Holmes JA at  and White J at  agreeing); Lipoma Pty Ltd & Anor v Redland City Council & Anor  QCA 180 at -; Navara Back Right Wheel Pty Ltd v Logan City Council & Ors; Wilhelm v Logan City Council & Ors  QPELR 899 at , I.B. Town Planning v Sunshine Coast Regional Council  QPEC 36 at .
 Ex. 3.4, TP JER, p.18, para 76.
 Ex. 3.4, TP JER, p.18, para 78.
 Ex. 3.4, TP JER, p.18, para 79.
 Ex. 3.4, p. 18, para 81.
 Ex. 4.1, Schomburgk, para 30.
 Ex. 3.4, p. 22, para 98.
 Ex. 10 – 13, p 1.
 T6 – 26.
 Ex. 2.1, p 88, s 4.10.4(1)(d)(ii)
 Ex 3.4, para 102.
 There is a nearby school.
 T7-45 to 49.
 Ex 2.1 p 90-91 s 4.10.5(2)(p).
 Ex 2.1 p 94 – code assessable where not for inconsistent use.
 Ex 2.1, p 94.
 T7-49, 50.
 T7 – 37(2).
 Ex 2.1, p 7, s 1.6(12)
 Section 4.10.2(b).
 Section 4.10.2(2)(a)(iii).
Fabcot Pty Ltd v Cairns Regional Council  QPEC 38 at .
 See s 4.3.3(1)(b)(iv), Note 4.10.4B, s 4.10.4(1)(d)(ii)(E).
 T2-40, T2-43.
 Mr Norling elsewhere referred to a moderate need.
 Ex. 3.2, para 219.
 Ex. 4.1 para 29; Exhibit 3.4 para 72.
 Ex. 4.4 p 11 para 6.4(i).
 Ex. 3.4 para 206 (iv).
Garyf Pty Ltd v Maroochy shire council and others  QPEC 101 paras 25 & 55.
 Mr Norling’s view is that the cumulative impact of the proposal and the recently opened Yamanto Central will be unacceptable.
 I have not placed weight on that omission.
 Ex 3.2, p 24, Table 2.
 Ex. 3.2, p 25, Table 3.
 Ex 3.2, p 22, Table 1.
 T2-58, T3-4.
 23, 060 v 24 130
 24 590 v 25 760
 Ex 3.2 p 224 (a)
 T3-54, Ex 3.2, paras 162 and 163..
 Ex. 3.2 Para 78(a).
 Ex. 3.2 Para 89 updated by Ex. 4.5, paras 33, 34.
 Ex. 3.2, para 78(c).
 Ex. 3.2, para 93.
 Ex 3.2, para 174, T3-54.
 T3-70, T2-49.
 Ex.3.3 paras 162 and 163.
 Ex. 3.2 para 165 table 13.
 Ex. FG 9.4.
 Ex FG 9.3, Ex 4.5, Table 1.
 Ex. FG3.3, para 100, table 9, map 6.
 Ex. FG3.3, para 181.
 Ex. FG3.3, paras 168-170 and map 8.
Garyf Pty Ltd v Maroochy Shire Council & Ors Supra at para 55.
 Ex FG 3.3, para 251.
 Ex FG 3.3, para 242.
 Ex FG 3.3, para 251 (v)
 Ex FG 3.3, Figure 6.
 Ex.3.2 para 180.
 T3-31 as to convenience of a lower order centre.
 The material before the court included documents from people who say they would be benefitted – Ex 5.
 Ex. 4.1, para 28.
 T2-43, T3-26, 27.
 T6-52, 53.
 Ex 5.25, para 9.
 Ex. 2.2, p 79 – the same map showed the subject site in a residential designation.
 Ex. 4.1, para 29.
 T2-41 as to the intervening land uses. On the western side there are 10 allotments (9 residential houses and a vet) and 2 streets between the subject site and the Centre. On the eastern side there are 5 residential houses, 3 multiple dwellings and the Bellamy Lutheran Complex consisting of a school, church and kindergarten.
 Ex. 11.7.
 Ex. 11.15.
 Decision to approve was made on 28 April 2015 with the Decision Notice issued on 8 July 2015 – Ex. 9.7.
 The largest shop tenancy was 848m² - Ex. 11.8, p 17.
 Ex. 11.16
 Exhibits 5.016 and 5.022.
 Ex. 5.023.
 Para 4.
 Para 23.
 Para 24.
 Para 29.
 Paras 38, 44.
 Para 47.
 Ex 5.25.
 Para 6.
 Paras. 8 – 11.
 Paras. 12 and 13.
 Paras. 13 – 17.
 Paras. 22 and 23.
 Paras 24, 25.
 Ex. 5.26, para 2 – 3.
 Ex. 5.25, paras 1 – 4.
 See para 23.
 A “business use” (shop) – Exhibit 2.1, p 152 – being an inconsistent use class (p 43) and impact assessable (p 45).
 Ex. 4.1, .
 Ex. 3.2, para 208 – for example, Mr Norling estimates that the proposal will reduce the 2024 turnover of the Raceview Centre by $2.2m (from $13.5m to $11.3m), being a 16.5% impact, whilst it would reduce turnover at Silkstone Village more in dollar terms ($45.4m – allowing for Yamanto – to $39.8m), it is less in percentage terms (12.3%).
 (1979) 140 CLR 675.
 Per Stephen J at 687.
 Ex. 3.2, p 68.
 Ex. 3.2, para 204.
 Ex. 3.2, p 65, Table 15.
 Ex 3.2, p 67.
 Ex. 3.2, p 70, Table 16.
 Ex. 3.2, para 196.
 Ex. 3.2, para 199.
 Ex. 3.2, para 197.
 Ex. 3.2, para 201.
 Ex. 3.2, p 67.
 A term created by Woolworths’ marketing team – T3.64.
 T3-63, 64.
 Ex. 3.2, para 208.
 Ex. 3.2, para 113.
 Ex. 3.2, paras 208, 211.
 Ex. 4.5, para 54.
 Ex. FG 3.3, para 252(vi)
 Ex 3.2, paras 118 – 119, T3-11, 12, T3-24, T3-55.
 The General Manager of JMK Retail.
 Ex. 3.2, para 121.
 Ex. 5.021, paras 1, 8, 34.
 Ex. FG 4.6, paras 63 – 65.
 The requirement for a development approval for a shopping centre has been dealt with earlier. Redevelopment for a stand alone supermarket would be a “business use” (shop) which would be code assessable, since it would not fall within the circumstances described for exempt development (it would not be within an existing building) or impact assessable development if redevelopment to occur on the Local Retail and Commercial zoned land within the existing centre – Ex. 2.1, p 93.
 Ex. 3.2, Table 15.
 Ex. 3.2, para 205.
 Ex. 3.2, Table 16..
 Ex. 3.2, para 211.
 Ex. 3.2, para 226(e).
 Ex. 5.020, para 2.
 Ex. 5.020, para 5.
 Ex. 5.021, para 18.
 Ex. FG 3.3, para 263.
 I note the statements from specialty retailers concerned about the flow-on effects for them Ex 5.18, 5.19.
 Ex. FG 3.3, para 267.
 Ex 5.02.
 Ex. 5.021, paras 41, 42.
 Ex. 5.020, paras 13, 15.
 Ex. 3.2, para 205.
 Ex. 3.2, para 191.
 Ex. 3.2, para 191.
 Ex 3.2, para 194.
 Ex. 10.1, T2-24, T6-5.
 T6-10, see also Ex. 5.20, para 16-19.
 Ex. 3.2, Table 16.
 FG 3.3, para 264.
 Ex. 3.2, para 208.
 Ex. 3.2, Table 16.
 Ex. FG 3.3, para 269.
 Ex. FG 4.6, para 66.
 Ex. FG 4.6, para 70.
 Ex. FG 4.6, paras 72, 73.
 Ex FG 4.6, para 74.
 Ex. FG 4.6, paras 83, 87, 88.
 Ex. FG 4.6, para 90.
 Ex. FG 4.6, paras 58, 59.
 Ex. FG 10.2.
 Eg Coles trading lower than expected T3-76.
 T3-57, 58, T3-74.
 Ex. FG 10.9.
 Ex. FG 4.6, para 92.
 Ex. 3.2 para 211.
- Published Case Name:
Fabcot Pty Ltd v Ipswich City Council & Anor
- Shortened Case Name:
Fabcot Pty Ltd v Ipswich City Council
 QPEC 11
14 Apr 2022