Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QPEC
  3. 2024
  4. Kelly Consolidated Pty Ltd v Ipswich City Council - [2024] QPEC 12

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Kelly Consolidated Pty Ltd v Ipswich City Council[2024] QPEC 12

Kelly Consolidated Pty Ltd v Ipswich City Council[2024] QPEC 12

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Kelly Consolidated Pty Ltd v Ipswich City Council & Anor [2024] QPEC 12

PARTIES:

KELLY CONSOLIDATED PTY LTD (ACN 050 719 312)

(Appellant)

v

IPSWICH CITY COUNCIL

(Respondent)

AND

YAMANTO HOLDINGS PTY LTD (ACN 621 651 750)

(Co-Respondent)

FILE NO/S:

2165 of 2021

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

25 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2022 (site inspection), 30 and 31 May 2022, and 17 to 21 October 2022 and further submissions received 9 February 2023, 3 March 2023 (but dated 28 February 2023) and 17 May 2023

JUDGE:

Kefford DCJ

ORDER:

I order:

(a) the appeal be allowed; and

(b) Ipswich City Council’s decision to approve the development application for a material change of use – Business Use (bulky goods sales, cafe, fast food premises, food delivery service, restaurant, shop, snack bar, and/or takeaway food premises) notified in the decision notice dated 13 July 2021 is set aside and replaced with a decision to refuse that part of the development application that sought a development permit for a material change of use.

CATCHWORDS:

PLANNING AND ENVIRONMENT – PLANNING AND ENVIRONMENT – APPEAL – appeal against the Council’s approval of development application – where Yamanto Holdings Pty Ltd seeks to make a material change of use to establish an integrated retail facility comprising multiple tenancies used for bulky goods sales – where the appellants contend the development is an inappropriate use of the subject land – where the appellants contend that there is no need for the proposed development – whether the proposed development is properly characterised as a shopping centre – whether the proposed development is explicitly supported by the Ipswich Planning Scheme 2006 – whether there is a need for the proposed development – whether the proposed development will have an adverse economic impact on the Yamanto Major Centre – whether the proposed development will support the Yamanto Major Centre – whether the development application should be approved in the exercise of the planning discretion

LEGISLATION:

Planning Act 2016 (Qld), ss 43, 45, 59, 60

Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47

Planning Regulation 2017 (Qld), s 31, sch 24

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2021] QPELR 1003, applied

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, applied

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, approved

Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, applied

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253; [2021] QPELR 987, applied

Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, approved

Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, applied

Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, applied

Family Assets Pty Ltd v Gold Coast City Council & Anor [2008] QPEC 3; [2008] QPELR 448, approved

Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, applied

Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343, approved

Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, approved

Harburg Investments Pty Ltd v Brisbane City Council & Anor [2000] QPEC 32; [2000] QPELR 313, approved

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, applied

Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, approved

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, cited

Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, applied

Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, approved

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, applied

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46; [2020] QPELR 328, approved

Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77; [2023] QPELR 398, approved

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, cited

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, applied

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

Sonter v Commissioner of Land Tax (NSW) (1976) 7 ATR 30, considered

St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, applied

SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, applied

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, applied

Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, cited

Wilhelm v Logan City Council & Ors [2020] QCA 273; [2021] QPELR 1321, applied

Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, applied

Wu & Kuo Childcare Pty Ltd v Brisbane City Council & Anor [2022] QPEC 27; [2023] QPELR 1004, approved

Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, applied

Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, applied

COUNSEL:

M Batty and R Yuen for the Appellant

K  Buckley for the Respondent

C L Hughes KC, B Rix and J Bowness for the Co-Respondent

SOLICITORS:

Connor O'Meara for the Appellant

McCullough Robertson for the Respondent

Mills Oakley for the Co-Respondent

TABLE OF CONTENTS

Introduction5

What is the applicable framework for the decision?8

What are the issues in dispute?9

What are the parameters of the proposed development and its proper characterisation?10

What are the general principles that inform the proper characterisation of a use?11

What context is provided by the legislative regime and the Planning Scheme?12

What is the proper characterisation of the proposed development?17

Is the proposed development a land use of the subject land that is explicitly supported by the Planning Scheme?19

What assessment benchmarks does Kelly Consolidated Pty Ltd rely on?21

What is the relevant context for those assessment benchmarks?23

Conclusion about whether the proposed development is explicitly supported28

Is there a need for, and an absence of adverse economic impact occasioned by, the proposed development?29

What are the general principles that inform and guide an assessment of need?29

What is the available evidence?30

What assistance is provided by the reports prepared prior to the minor change?32

What do the reports prepared after the minor change address?36

What is the demand for bulky goods sales uses?37

What is the supply of retail facilities to address the demand?41

Is the supply of trade showroom floorspace relevant?43

Is the new Yamanto Shopping Centre approval limited in the extent to which it can cater to the demand for bulky goods sales?43

Is there a demonstrated need for the proposed development?48

What is the potential impact of the proposed development?49

Conclusion regarding the need for, and economic impact occasioned by, the proposed development50

Is the proposed development consistent with the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii)?51

Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(c)?52

Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(e)?52

Is the proposed development consistent with the specific outcome for Sub Area LB6 – Yamanto in

s 4.11.4(6)(g)?54

What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?55

Is the proposed development appropriate and well-located in town planning terms?58

Will the proposed development result in positive social and economic benefits for the local community?60

Is the location of the proposed development consistent with good planning and the reasonable expectations of the community?60

Should the development application be approved in the exercise of the planning discretion?61

Conclusion63

Introduction

  1. [1]
    At the intersection of Saleyards Road, Hall Street and Warwick Road in the suburb of Yamanto sits a vacant parcel of land comprising 140 lots that has a total area of approximately 18.33 hectares (“the subject land”).  Yamanto Holdings Pty Ltd wants to develop part of the subject land for retail uses.
  1. [2]
    The subject land is located about five kilometres south of the Ipswich central business district and about one kilometre from the Cunningham Highway.  The RAAF Amberley Base is located to the west of the subject land and the suburb of Ripley is located to the southeast, on the other side of the Cunningham Highway.
  1. [3]
    Yamanto includes rural and urban areas and is comprised of land in a mix of zones, including the Low Density Residential Zone, the Local Business and Industry Zone and the Major Centres Zone under the Ipswich Planning Scheme 2006 (“the Planning Scheme”).
  2. [4]
    The character of Yamanto is reflected in the mix of uses located near the subject land, which include retail, commercial and community uses, along with residential development on the western side of Hall Street.
  3. [5]
    Directly opposite the subject land, fronting the southern side of Warwick Road, is land that the Planning Scheme designates as the Yamanto Major Centre.  It is comprised of:
    1. Yamanto Central, anchored by a Coles Supermarket of 3,920 square metres, a Kmart of 6,600 square metres, and 8,000 square metres of speciality retail, lifestyle and health tenancies;
    2. Yamanto Tavern, which adjoins Yamanto Central to the south and comprises a bar, gaming lounge and bistro; and
    3. Yamanto Village Shopping Centre, which is located at the corner of Warwick Road and the Cunningham Highway.  It is anchored by a Woolworths Supermarket and includes Super Amart, Supercheap Auto, McDonalds, Snap Gym and other speciality retailers.
  4. [6]
    In addition, on 13 October 2022, Ipswich City Council (“the Council”) granted a development permit to Kelly Consolidated Pty Ltd for a further shopping centre in the Yamanto Primary Business Area of the Yamanto Major Centre Zone (“the new Yamanto Shopping Centre approval”).  That approval authorised a material change of use for:

“Shopping Centre (Shops and Bulky Goods Sales but limited to premises not less than 300m2 per tenancy used for the display and sale of large bulky goods, or large stocks of similar goods or related goods (in the interests of clarity, and for emphasis, this definition does not extend to, or include, a supermarket, department store, discount department store in the form of discount department stores currently conducted by Target, Kmart and Big W), Restaurant, Medical Centre and Office)”.

  1. [7]
    A range of other retail showrooms, trade and warehouse activities, and light or service industrial uses are also located along Warwick Road.  They include:
    1. KFC and Hungry Jacks, which are located on Warwick Road, opposite the subject land and to the north;
    2. an Ampol Service Station, which is located further to the north and is co-located with a collection of fast food restaurants, including Zarraffas Coffee, Zambrero and Subway; and
    3. Aldi, which is located on the opposite side of Warwick Road to Yamanto Central and Yamanto Village Shopping Centre, and on the opposite side of Hall Street to the subject land.
  2. [8]
    The subject land is in Sub Area LB6 - Yamanto of the Local Business and Industry Zone.  It is located about 100 metres from the Yamanto Major Centre.  The Planning Scheme records that land in Sub Area LB6 – Yamanto of the Local Business and Industry Zone is to support the intended business functions of the Yamanto Major Centre. 
  3. [9]
    The subject land is approved to be reconfigured into six lots, being proposed lots 12 to 17, and an access road.  Yamanto Holdings Pty Ltd wants to develop about 7.61 hectares of the subject land, being proposed lots 12 and 13, for what it describes as a bulky goods sales complex.  To facilitate that goal, it made a development application to the Council.
  4. [10]
    During the public notification of the development application, Kelly Consolidated Pty Ltd made a submission objecting to the proposed development.
  5. [11]
    On 13 July 2021, the Council notified Yamanto Holdings Pty Ltd of its decision to approve the development application subject to conditions.  It granted a development permit for making a material change of use and a development permit for operational works for advertising devices, being five pylon signs.
  6. [12]
    This is an appeal by Kelly Consolidated Pty Ltd against the Council’s decision to give Yamanto Holdings Pty Ltd a development permit for material change of use.  There is no appeal with respect to that part of the decision that relates to the proposed operational works.[1] 
  7. [13]
    Kelly Consolidated Pty Ltd contends that there is no need for the proposed development.  It also contends that the proposed development does not accord with provisions of the Planning Scheme that relate to the proper functioning and support of the centres, which it says is a fundamental aspect of the proper planning for the Ipswich local government area.  
  8. [14]
    Yamanto Holdings Pty Ltd and the Council dispute these contentions.
  9. [15]
    Yamanto Holdings Pty Ltd bears the onus of establishing that the appeal should be dismissed.[2]  There are two propositions that are fundamental to Yamanto Holdings Pty Ltd’s case for approval.  First, the proposed development has the explicit and unconditional support of the Planning Scheme in that it is a use that is contemplated and encouraged on the subject land.  Second, there is a need for the proposed development.  In addition, Yamanto Holdings Pty Ltd says that an approval is supported by the absence of alleged impacts (other than economic impacts) and the exceptional locational attributes of the subject land that make it eminently suitable for the proposed development.
  10. [16]
    The ultimate question for me to decide is whether, in the exercise of the planning discretion, that part of the development application that sought a development permit for material change of use should be approved.

What is the applicable framework for the decision?

  1. [17]
    The appeal proceeds, generally, by way of hearing anew.[3]  The Court assesses the development application under s 45 of the Planning Act 2016 (Qld) as if it were the assessment manager.[4] 
  1. [18]
    The Court has a broad discretion in determining the appeal.  It has power to confirm the decision appealed against, or change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the Council with directions the Court considers appropriate.[5]
  2. [19]
    The Court’s broad discretion should be exercised judicially[6] and subject to the limitations in the relevant statutes.[7]  The statutory framework in the Planning and Environment Court Act 2016 and the Planning Act 2016 provides relevant guidance in that respect.
  1. [20]
    The development application required impact assessment.  For that reason, the exercise of the discretion with respect to that part of the development application must be based on an assessment that:[8]
  1. must be carried out:
  1. against the assessment benchmarks in the Planning Scheme[9] to the extent that they are relevant;[10]
  2. having regard to, relevantly:
  1. any development approval for, and any lawful use of, the premises and adjacent premises;
  2. the common material, including properly made submissions about the development application;[11] and
  1. may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances (financial or otherwise).
  1. [21]
    The assessment and decision-making process is to be approached consistent with the Court of Appeal decisions of Brisbane City Council v YQ Property Pty Ltd,[12] Abeleda & Anor v Brisbane City Council & Anor,[13] Wilhelm v Logan City Council & Ors[14] and Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[15]  Collectively, those cases confirm the approach articulated in Ashvan Investments Unit Trust v Brisbane City Council & Ors.[16]  That approach is also consistent with that described in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor.[17]

What are the issues in dispute?

  1. [22]
    In accordance with the usual practice of the Court at the time of the hearing,[18] an agreed list of issues was tendered by the parties identifying the focus of their dispute.[19]  As is apparent from that document, only a select number of the assessment benchmarks in the Planning Scheme have been put in issue.  In addition, each party identifies the relevant matters on which they rely to support their position.
  2. [23]
    Having regard to those aspects of the relevant assessment benchmarks placed in issue, and the Agreed Issues in Dispute,[20] the real issues that require determination can be summarised as follows:
  1. Is the proposed development a land use of the subject land that is explicitly supported by the Planning Scheme? 
  2. Is there a need for, and an absence of adverse economic impact occasioned by, the proposed development?
  3. Is the proposed development consistent with the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii)?
  4. Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(c)?
  5. Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(e)?
  6. Is the proposed development consistent with the specific outcome for Sub Area LB6 – Yamanto in s 4.11.4(6)(g)?  
  7. What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?
  8. Is the proposed development appropriate and well-located in town planning terms?
  9. Will the proposed development result in positive social and economic benefits for the local community?
  10. Is the location of the proposed development consistent with good planning and the reasonable expectations of the community?
  11. Should the development application be approved in the exercise of the planning discretion?
  1. [24]
    The answer to these questions requires an understanding of the development that is proposed.  Ordinarily, the characterisation of a proposed use is an uncontroversial matter.  This is not such a case.  Here, there is a dispute between Yamanto Holdings Pty Ltd and Kelly Consolidated Pty Ltd about the character of the proposed development.  The dispute informs their respective positions about:
    1. the extent to which the Planning Scheme contemplates, and encourages, uses of the type proposed; and
    2. whether there is a demonstrated need for the proposed development. 
  2. [25]
    As such, it is instructive to consider the parameters of the proposed use, and its proper characterisation, before addressing the substantive issues in dispute.

What are the parameters of the proposed development and its proper characterisation?

  1. [26]
    Yamanto Holdings Pty Ltd seeks a development permit for making a material change of use of premises.  On the first day of the hearing, I approved an application by Yamanto Holdings Pty Ltd to proceed to hearing based on a minor change to the development application.[21]  Yamanto Holdings Pty Ltd describes the use as “Business use (bulky goods sales, café, fast food premises, food delivery service, restaurant, snack bar and/or takeaway food premises”).[22]
  2. [27]
    Kelly Consolidated Pty Ltd contends that the proposed development is properly characterised as a shopping centre under the Planning Scheme, rather than a business use because:
    1. the definition of business use excludes the use of premises for a shopping centre; and
    2. a premises used for bulky goods sales is a shop and, as such, the proposed development complies with the definition of shopping centre.
  3. [28]
    The Council and Yamanto Holdings Pty Ltd disagree.  They say that a premises used for bulky goods sales is not a shop for the purpose of the definition of shopping centre in the Planning Scheme.
  4. [29]
    Before turning to the relevant provisions of the Planning Scheme, it is helpful to consider the general principles that can be distilled from case law about the proper characterisation of a use.

What are the general principles that inform the proper characterisation of a use?

  1. [30]
    It has long been recognised in town planning law that there is a close correlation between the relevant planning unit and the characterisation of a use.[23]  The identification and delineation of a planning use is a question of fact.  It is determined by undertaking an evaluative exercise that calls for consideration of the circumstances of the case, the applicable legislative regime and the planning context.[24] 
  2. [31]
    Undertaking a comparison of the situation that pertains in one case to other cases, or a process of cataloguing the similarities and differences in the circumstances pertaining in each case, is unlikely to assist.  The task may be assisted by consideration of general principles about the identification of a planning unit and the characterisation of its use.  These can be distilled from earlier cases, provided care is taken to identify any material difference in the legislative regime and planning context.  Relevant general principles include: 
    1. a planning unit is the entire physical area that is used for a particular purpose, including any part of that area where a use is incidental, or ancillary, to the achievement of that purpose;[25]
    2. where a single unit of occupation contains two or more physically separate and distinct areas that are occupied for substantially different and unrelated purposes, each area that is used for a different main purpose (together with its incidental and ancillary activities) should be considered as a separate planning unit;[26]
    3. where the whole premises is used for two or more purposes, none of which are subservient to the others, it is irrelevant to inquire which of the multiple purposes is dominant;[27]
    4. where premises are used for two or more purposes, one of which is described as the dominant purpose, and the others are described as ancillary to the dominant purpose, the ancillary purpose or purposes take their colour from the dominant purpose;[28]
    5. consideration of an entire unit of occupation might reveal a composite or mixed use in circumstances where the occupier carries on a variety of activities that are not confined within separate and physically distinct areas of land, the component activities fluctuate in their intensity from time to time, and it is not possible to say that one is incidental or ancillary to another;[29]
    6. although considering the intended use of premises by reference to the activities, processes and transactions to be undertaken will be useful in casting light on the purpose of the proposed use, it is inappropriate to determine the relevant purpose by doing no more than identifying activities, processes or transactions and then fitting them to one or more uses as defined in a planning scheme or into the definition that provides the best fit;[30] and
    7. where a planning scheme does not purport to cover every possible use to which land or buildings might be put, such as where it refers to a use for “any other purposes” or innominate uses, a planning authority need not regard a proposed use as necessarily coming within any of the definitions in the planning scheme if such placement is inappropriate in terms of the planning scheme and the definitions.  To treat the planning scheme definitions as all-encompassing would render provision for an innominate use otiose.[31]
  3. [32]
    With those principles in mind, I now turn to the context provided by the applicable legislative regime and the Planning Scheme.

What context is provided by the legislative regime and the Planning Scheme?

  1. [33]
    The development application is made under the Planning Act 2016.  It defines:
  1. premises as:
  1. a building or other structure; or
  2. land, regardless of whether there is a building or other structure on the land; and
  1. a use, for premises, to include “an ancillary use of the premises”.
  1. [34]
    At the time the Planning Scheme was prepared, the Integrated Planning Act 1997 was in force.  It defined premises in materially similar terms, but defined a use, in relation to premises, to include “any use incidental to and necessarily associated with the use of the premises”.
  1. [35]
    With the legislative differences about the extent of a “use” in mind, I turn to the definitions in the Planning Scheme and the context in which they occur.  The whole Planning Scheme, including the provisions defining terms, is to be construed using the principles that apply to the construction of statutes.  The Planning Scheme is to be read as a whole and in a way that is practical and intended to achieve a balance between the individual outcomes.[32] 
  1. [36]
    Schedule 1 of the Planning Scheme contains a dictionary that has two divisions.  Division 1 of sch 1 is headed “Defined Uses and Use Classes”.  A note at the start of div 1 explains:

“(1) The use definitions describe a use for a single purpose such as “Caretaker Residential” or “General Store”.

  1. The use class definitions cover a range of uses having different purposes but broad characteristics in common, for example the “business use” class covers a range of uses for business purposes such as shops, service stations and hotels.”
  1. [37]
    Division 2 of sch 1 of the Planning Scheme is headed “Administrative Terms”.  A note at the start of div 2 explains:

“(1) The Administrative definitions describe terms commonly used throughout the planning scheme that need specific definition to ensure consistent interpretation e.g. “overlay” and “site area”.

  1. To assist in interpretation, some of the terms used in the use classes (e.g. “Bulky Goods Sales” in the “Business Use” class) are also defined in this division. These terms are defined to assist in the administration of the scheme. They do not constitute defined uses or use classes, which are set out in Division 1.
  1. The scheme is a statutory instrument that operates within the overall umbrella of the parent Act, the IPA. It is important for consistent statutory interpretation that the scheme and Act work together. To ensure there is no confusion about the meaning of words, the Act states that if there are inconsistencies between the meaning of a word in a scheme and the meaning of the same word in the Act, the Act meaning prevails. Where an IPA term is listed in the administrative definitions, such as “development”, the scheme deliberately avoids potential conflicts by stating that the term has the same meaning as in the Act.”
  1. [38]
    Consistent with the description of the difference between uses and use classes in the note at the start of sch 1, div 1 of the Planning Scheme, div 2 defines use and use class as:

““Use” in relation to a use class, means a use for a single purpose that is part of that use class, such as “shop” in a “Business Use” class.

“Use Class” means a group of uses having different purposes but broad characteristics in common, such as a “Business Use” class that includes uses for a shop, restaurant, hotel and the like.”

  1. [39]
    In sch 1, div 1 of the Planning Scheme, “Business Use” and “Shopping Centre” are defined as:

““Business Use”

  1. “Business Use” means the use of premises for business purposes, including the following—
  1. auction depot;
  1. bulky goods sales;
  1. broadcasting station;
  1. cafe;
  1. cake shop;
  1. farm supply outlet;
  1. fast food premises;
  1. food delivery service;
  1. funeral premises;
  1. garden centre;
  1. hot bread shop;
  2. hotel;
  3. laundromat;
  4. medical centre;
  5. non mechanical car wash
  6. office;
  7. produce/craft market;
  8. professional office;
  9. restaurant
  10. service station;
  11. shop;
  12. snack bar
  13. takeaway food premises;
  14. vehicle sales premises; or
  15. veterinary clinic.
  1. The term does not include the use of premises for “Community Use”, “Recreation Use”, “Entertainment Use”, “General Industry”, “General Store”, “Home Based Activity”, “Service Trades Use”, “Shopping Centre”, “Special Industry” or “Temporary Sales Office”.

…

“Shopping Centre”

  1. “Shopping Centre” means the use of premises primarily for shops comprising two or more individual tenancies, and that functions as an integrated complex.
  1. The term includes the use of individual tenancies for “Business Use”.”

(emphasis added)

  1. [40]
    In div 2 of the Planning Scheme defines “Bulky Good Sales” are defined as:

““Bulky Goods Sales”

  1. “Bulky Goods Sales” means a building having a gross floor area of more than 500 square metres used for the sale, or displaying or offering for sale, by retail of bulky goods which are of such a size, shape or weight as to require—
  1. a large area for handling, storage or display; and
  1. direct vehicular access for the purpose of loading into or onto vehicles.
  1. The term includes the sale of—
  1. floor coverings and tiles;
  1. furniture;
  1. domestic appliances such as washing machines, dishwashers, clothes dryers, refrigerators, hot water systems, air-conditioning systems and the like; or
  1. building and construction materials and fittings with or without hardware.”
  1. [41]
    Although there is no definition of “shop” in the Planning Scheme, Kelly Consolidated Pty Ltd contends that a premises that meets the definition of “Bulky Goods Sales” falls within the ordinary meaning of shop, being “a building where goods are sold retail.”[33]
  2. [42]
    The Council, with whom Yamanto Holdings Pty Ltd agrees, contends that, when construing the Planning Scheme, “shop” should not be construed as including a premises used for “Bulky Goods Sales”.  The Council advances three reasons for that contention.
  3. [43]
    First, “Bulky Goods Sales” is separately defined.  The Council says that this ensures that it is consistently interpreted across the Planning Scheme and not read as a subset of another use, such as shop.  The Council submits that “bulky goods sales”, “cake shop”, “hot bread shop”, “shop” and “Shopping Centre” receive different treatment in the Planning Scheme and, as such, that they are not terms that should be read interchangeably.  The Council seeks to demonstrate its point by reference to provisions of the Planning Scheme wherein the Council says:
    1. different levels of assessment are ascribed to “cake shop”, “hot bread shop” and “shop” as compared to “bulky goods sales” and “Shopping Centre”; and
    2. different parking rates apply for “bulky goods sales”, “cake shop”, “hot bread shop”, “shop”, and “Shopping Centre”. 
  4. [44]
    Second, the Council submits that if “shop” were read as including “bulky goods sales”:
    1. there would be internal inconsistencies, where the Planning Scheme has specifically identified “bulky goods sales” as an inconsistent use but has not attributed the same characterisation to a “shop”; and
    2. the definition of “Bulky Goods Sales” would have no work to do.
  1. [45]
    Third, the Council submits that a development does not fit the definition of a “Shopping Centre” where it is not anchored by a supermarket or large department store and where it does not offer the usual centre-type convenience or comparison retail services. 
  2. [46]
    I do not accept the Council’s submissions.  They overlook important context.  Each of the references in the Planning Scheme to “bulky goods sales”, “cake shop”, “hot bread shop”, or “shop” are made in a context where they are identified as part of the “Business uses” use class.
  1. [47]
    Read in context, the provisions to which the Council refers reveal that, when indicating the preferred land uses for various locations and managing the impacts of land uses, in certain locations the Planning Scheme draws a distinction between each of “Business use (bulky goods sales)”, “Business use (cake shop)”, “Business use (hot bread shop)”, and “Business use (shop)”.  No such distinction is present in the definition of “Shopping Centre”.[34]  The definition of Shopping Centre refers only to “shops”, not “Business use (shops)”. 
  2. [48]
    In addition, assuming for the moment that a shopping centre is ordinarily anchored by a supermarket or a large department store and usually offers centre-type convenience or comparison retail services, the absence of those features in the proposed development is not determinative of its characterisation.  Those features are not requirements of the definition of Shopping Centre.
  3. [49]
    The focus of the definition of Shopping Centre is a composite use comprised of two or more individual tenancies that together function as an integrated complex.  The use is to be “primarily as shops”, with shops given its ordinary meaning. 
  4. [50]
    Such a construction sits harmoniously with the structure of the definition of Shopping Centre.  The definition is structured to remove any doubt that what is identified by the inclusion in the second limb of the definition falls within the scope of the designated meaning in the first limb.  As such, if the use of premises is primarily for those uses in the Business Use class that could be ordinarily regarded as a shop (such as bulky goods sales, cake shop, or hot bread shop) and comprises two or more individual tenancies that function as an integrated complex, it falls within the definition of Shopping Centre.
  5. [51]
    That construction fits comfortably with all the other provisions of the Planning Scheme, which recognise that different planning considerations arise for:
    1. a composite use comprised of two or more individual tenancies that together function as an integrated complex, as compared to
    2. a single lot that contains two or more physically separate and distinct areas that are occupied for substantially different and unrelated purposes, such as a premises used for a “Business use (bulky goods sales)” and a “Business use (hot bread shop)”.
  6. [52]
    With that context in mind, I now turn to consider the facts and circumstances of this case.

What is the proper characterisation of the proposed development?

  1. [53]
    As I have already mentioned, the subject land is a vacant parcel of land comprising 140 lots that has a total area of approximately 18.33 hectares.  It is approved to be reconfigured into six lots.  As is apparent from the plans,[35] the material change of use only relates to part of the subject land, being proposed lots 12 and 13 and the access road.  Proposed lots 12 and 13 have an area of approximately 7.61 hectares.  They are oriented to front Warwick Road. 
  2. [54]
    The plans show that the proposed development involves two buildings, each with associated car parking. 
  3. [55]
    The larger of the two buildings is on proposed lot 12.  It has an area of 14,061 square metres.  It contains:
  1. 10 tenancies that are described as “bulky good sales” with:
  1. four tenancies of 700 square metres;
  2. two tenancies of 1,100 square metres;
  3. two tenancies of 1,352 square metres;
  4. two tenancies of 3,000 square metres;
  1. two tenancies of 88 square metres that are to be used for “café, fast food premises, food delivery service, restaurant, snack bar or takeaway food premises”; and
  2. 181 square metres for the centre management office and amenities.
  1. [56]
    Proposed lot 12 also contains a single, large carparking area at the front of the building, accommodating 385 car parking spaces and 18 bicycle spaces.  There are four pylon advertising signs.  There are two loading docks – one at each end of the rear of the building (away from the carpark) – and a service road that provides access to them. 
  2. [57]
    The smaller of the two buildings is on proposed lot 13, which is north of proposed lot 12.  The building has an area of 4,800 square metres.  It contains five tenancies that are described as “bulky good sales”.  One of the tenancies is 800 square metres in area and the other four are each 1,000 square metres.  Proposed lot 13 also contains a car parking area in front of the building, accommodating 133 car parking spaces and 12 bicycle spaces, and one pylon sign.  There is a service road that runs behind the building. 
  3. [58]
    Access to proposed lots 12 and 13 will be via an internal road that includes a roundabout.  That internal road is to be constructed with access to Warwick Road.  It connects Warwick Road to Salesyard Road.
  4. [59]
    Yamanto Holdings Pty Ltd describes the use as “Business use (bulky goods sales, café, fast food premises, food delivery service, restaurant, snack bar and/or takeaway food premises”).[36]  It says that the proposed development is one that presents as an integrated facility with a total retail gross floor area of 18,861 square metres, inclusive of the centre management office and the two small tenancies.[37]  Yamanto Holdings Pty Ltd proposes to use those tenancies marked “bulky goods sales” for uses that accord with the definition of bulky good sales in the Planning Scheme.[38] 
  5. [60]
    Consideration of the combination of activities, processes and transactions to be undertaken on proposed lots 12 and 13 is useful in casting light on the purpose of the proposed use.  However, it does not follow that it is necessary to fit the proposed development into one or more uses as defined in the Planning Scheme or into the definition that provides the best fit.[39]  The Planning Scheme does not purport to cover every possible use to which land or buildings might be put.  It provides for uses that are “other (not defined)”.  To treat the Planning Scheme definitions as all-encompassing would render those provisions that contemplate an undefined use otiose. 
  6. [61]
    Here, the use that is to be assessed is a use with those parameters identified in paragraphs [53] to [59] above.  Although I consider that the proposed development may fit the definition of Shopping Centre, it does not follow that the proposed development is properly so characterised.  To characterise the use in that manner would ignore important characteristics of the proposed development, such as the intention to limit the flexibility of the type of shop that can be conducted in the identified tenancies.  The proposed development seeks the use of premises comprising two or more individual tenancies that functions as an integrated complex where all except two of the tenancies must be used only for the type of shop that accords with the “bulky goods sales” definition.  This is the use that I am to assess. 
  7. [62]
    For completeness, it is unnecessary to ascribe a definitional label from the Planning Scheme to the proposed development and it would be inappropriate to do so in this case.  This is because, choosing a definition from the Planning Scheme would not adequately reflect the characteristics of the use that is proposed here.

Is the proposed development a land use of the subject land that is explicitly supported by the Planning Scheme? 

  1. [63]
    As I have already mentioned, one of the fundamental propositions that underpins Yamanto Holdings Pty Ltd’s case in support of approval is that the proposed development is explicitly supported by the Planning Scheme.  The Council agrees.  Kelly Consolidated Pty Ltd does not. 
  2. [64]
    Kelly Consolidated Pty Ltd contends that the proposed development:
    1. constitutes an “out of centre” development;
    2. would compromise the viability of higher order centres including the Ipswich Homebase at West Ipswich, the Booval Homemaker Centre, the Booval Fair Shopping Centre and the Yamanto Major Centre;
    3. would compromise, and potentially jeopardise, the function of the Yamanto Major Centre;
    4. does not support the Yamanto Major Centre; and
    5. does not cater to the needs of just the local community.
  3. [65]
    For those reasons, Kelly Consolidated Pty Ltd alleges that the proposed development is inconsistent with several core features of the Planning Scheme.  It says that the proposed development is inconsistent with:
    1. the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii);
    2. the overall outcomes for the Local Business and Industry Zone in ss 4.11.2(2)(c) and (e); and
    3. the specific outcome for Sub Area LB6 – Yamanto in s 4.11.4(6)(g).  
  4. [66]
    It is uncontentious that the provisions to which Kelly Consolidated Pty Ltd refers are relevant assessment benchmarks.  This is unsurprising given:
  1. the subject land is in the Council’s local government area and its lawful use is regulated by, amongst other things, the Planning Scheme;
  2. the Planning Scheme provides a framework for managing development in a way that identifies:
  1. those forms of development that require a development permit to lawfully proceed;
  2. the outcomes sought to be achieved in the Council’s local government area as the context for assessing development;[40]
  1. the framework is provided by dividing:
  1. the local government area into localities, which are identified geographical areas within the Planning Scheme area;
  2. each locality into zones, which provide the primary organisational layer in the Planning Scheme and are based on broad land use allocations;
  3. some of the zones into sub areas that have certain features, such as those related to uses or the physical character of the area, and which may affect the application of assessment categories and assessment criteria;[41] 
  1. under the Planning Scheme, the subject land is mapped as part of:
  1. the Urban Areas locality on Strategic framework Figure 1-1;
  2. the Local Business and Industry Zone on the Zoning Map;
  3. Sub Area LB6 – Yamanto on the Zoning Map;[42]
  1. the assessment tables identify development that is assessable (and requires a development permit to proceed) and the relevant level of assessment;[43] 
  2. the proper characterisation of the proposed development does not change the level of assessment in that impact assessment is required for the making of a material change of use in the Local Business and Industry Zone for:
  1. Business Use if it is bulky goods sales;
  2. Shopping Centre;
  3. other uses that are not defined;[44]
  1. the relevant assessment benchmarks against which development must be assessed are identified in column 3 of Table 4.11.1; and
  2. the proper characterisation of the proposed development does not change the need to assess the proposed development against the Urban Areas Code, including the specific outcomes in s 4.3.3 and div 11.  These are identified as relevant assessment benchmarks for a material change of use for:
  1. Business Use if it is bulky goods sales;
  2. Shopping Centre; and
  3. other uses that are not defined.[45]
  1. [67]
    Development complies with the Urban Areas Code if it is consistent with the specific outcomes for the Urban Areas in s 4.3.3 and the specific outcomes for the applicable zone, here the Local Business and Industry Zone in div 11.[46]
  2. [68]
    Yamanto Holdings Pty Ltd disputes the alleged non-compliances with the Planning Scheme.  It says that the provisions of the Planning Scheme to which Kelly Consolidated Pty Ltd refers demonstrate that the proposed development has the explicit support of the Planning Scheme.
  3. [69]
    In considering the respective cases, it is useful to first identify those assessment benchmarks relied on by Kelly Consolidated Pty Ltd to allege that the proposed development is not an appropriate land use.

What assessment benchmarks does Kelly Consolidated Pty Ltd rely on?

  1. [70]
    The first assessment benchmark relied on by Kelly Consolidated Pty Ltd is the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii).  It is part of a specific outcome about centres that states:

“(1) Specific Outcomes

  1. A network of centres is established which—
  1. supports the development of the Ipswich City Centre as a Key Centre for the Western Sub Region of South East Queensland;
  1. 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;
  1. 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.”

(emphasis reflects the alleged non-compliance)

  1. [71]
    The next two assessment benchmarks that are relied on are overall outcomes for the Local Business and Industry Zone about land use mix, namely those in ss 4.11.2(2)(c) and (e).  The overall outcomes are the purpose of the Local Business and Industry Zone.  They state:

“(2) The overall outcomes sought for the Local Business and Industry Zone are the following—

Land Use Mix

  1. Uses and works within the Local Business and Industry Zone support the Business and Industry Strategy contained in the Strategic Framework including—
  1. providing local employment opportunities as a means to ensure that there is a high level of employment self containment across the City;
  1. ensuring that there is a high correlation between job opportunities and workforce skills and qualifications;
  1. improving the skills base of the City by ensuring that there are employment opportunities to match or meet skilled or qualified personnel;
  1. improving the diversification of the economic base of the City by promoting the City’s economic strengths and potential;
  1. increasing value added production; and
  1. improving the City’s net trade account.
  1. A mix of compatible business and industry activities, is established, including commercial, service and trade activities, and appropriate low impact manufacturing activities, that support and are within close proximity to Major or Neighbourhood Centres.
  1. Uses and works do not compromise or jeopardise the intended retail and service functions of the City Centre and designated Major or Neighbourhood Centres.
  1. New uses and works are established on fully serviced land.
  1. Uses and works cater to the needs of the local community.”

(emphasis reflects the alleged non-compliance)

  1. [72]
    The final assessment benchmark that is relied on by Kelly Consolidated Pty Ltd is the specific outcome about the business mix for Sub Area LB6 – Yamanto in s 4.11.4(6)(g).  It states:

“The Sub Area supports the intended business functions of the Yamanto Major Centre by providing for—

  1. bulky goods retailing and retail warehouses;
  1. commercial uses which directly service the surrounding local population;
  1. food and beverage industries;
  1. general industries;
  1. outdoor sales and storage yards;
  1. plant nurseries, garden centres and landscape supplies;
  1. service/trades uses;
  1. sport, recreation and entertainment uses (excluding cinemas);
  1. transport depots;
  1. vehicle sales premises and automotive parts sales, fitting, servicing and repairs; and

(xi) warehousing and distribution activities.”

(emphasis reflects the alleged non-compliance)

  1. [73]
    In resisting the alleged inconsistencies with these assessment benchmarks, and advancing its case that the Planning Scheme explicitly supports the proposed development, Yamanto Holdings Pty Ltd urges consideration of those provisions in conjunction with:
    1. the Strategic Framework;
    2. the desired environmental outcomes;
    3. overall outcomes and specific outcomes for the Urban Areas as a whole; and
    4. overall outcomes and specific outcomes for the Local Business and Industry Zone.
  2. [74]
    Likewise, the Council submits that additional provisions of the Planning Scheme provide context that clarifies the relevant land use strategy.  I agree.

What is the relevant context for those assessment benchmarks?

  1. [75]
    Given the position of the parties in this case, it is important to understand the intended function of, and relationship between, areas that are zoned as part of a centre and land that is in a business and industry zone.
  2. [76]
    At a strategic level, the Planning Scheme indicates that commercial uses, which include retail uses, are to be on land designated as a centre in the existing urban areas and urban growth corridors, as shown on Map 3 in sch 7.  They are to be located to achieve diversity in commercial and community facilities, commerce and trade type development and either or both of low impact business and industry uses.  They are also to be located and designed to be compatible with the preferred function and population catchment of the centre.[47] 
  3. [77]
    The overarching centre strategy is to direct the focus of commercial activity to the development of the Ipswich local government area as a “City of Centres”.  In that “City of Centres”, Ipswich City Centre is to function as the Key Regional Centre and Springfield Town Centre is to function as a “Gateway CBD”.  There is also to be a network of other major centres (including major future urban centres), neighbourhood centres and local shopping/commercial areas as shown on Map 3 in sch 7.[48] 
  4. [78]
    In general terms, land in the Major Centres Zone of the Urban Areas is intended to “service the main convenience and comparison shopping needs of the City’s residents”.[49]  That land may be divided into Primary Business Areas and Secondary Business Areas. 
  5. [79]
    The function of the Primary Business Areas is to provide for more intensive development within compact, central locations.  Development in the Primary Business Area is to generally function as integrated shopping facilities, providing convenience and comparison shopping, supplemented by special retail, professional offices, eateries, some entertainment uses and residential uses. 
  6. [80]
    The function of the Secondary Business Areas is to provide for less intensive development in peripheral areas surrounding the Primary Business Areas.  Those areas are to include “traditional” commercial and retail strip shopping, ground floor retailing and other active shop-front uses.  They may include “‘stand alone’; drive to, ‘destination’ retailers, such as hardware stores and video shops, who prefer peripheral locations and often larger sites”.  Collectively, the Primary Business Areas and the Secondary Business Areas of the Major Centres Zone in the Urban Areas are planned to provide an extensive range of retail services.[50] 
  7. [81]
    The Yamanto Secondary Business Area in the Major Centre Zone is planned to provide for less intensive, retail and commercial uses including showrooms and bulky goods retailers.[51]
  8. [82]
    Major Centres may operate in conjunction with nearby service trades, and business and industry areas.[52] 
  9. [83]
    On Map 3 in sch 7, the subject land is mapped “Local Business & Industry Areas”.  It is not mapped as a centre.  By way of contrast, the land on the opposite side of Warwick Road that is in the Major Centre Zone (i.e., the land that contains Yamanto Village Shopping Centre, Yamanto Tavern and Yamanto Central) is mapped as “Major Suburban Centres – Existing”.  The mapping shows a “Local Neighbourhood Centre – Existing” at the intersection of Warwick Road and Ash Street.
  10. [84]
    Business and industry uses are to provide a diverse range of activities.  They are also to take advantage of:

“the economic potential available, the comparative advantages and competitive strengths for the preferred uses nominated for each Sub Area in the relevant zone.”[53]

  1. [85]
    Business and industry uses are to be in the business and industry areas in the existing urban areas and urban growth corridors as shown on Map 3 in sch 7.  The business and industry uses are to be located to achieve a diversity of enterprise and employment nodes, including local business and industry nodes and regionally significant business and industry nodes or clusters as shown on Map 3 in sch 7.[54]
  2. [86]
    Strategy Maps 1 and 2 provide the framework to achieve the desired environmental outcomes.  One such outcome is that business and industry activities in the urban areas reflect the economic potential of the local government area.  Strategy Maps 1 and 2 also depict the preferred future urban form.[55] 
  3. [87]
    On Strategy Map 1 – Whole of City, the subject land is mapped as part of “Urban Development Areas”.  The land on the opposite side of Warwick Road that is in the Major Centre Zone is mapped as “Other Major Centres”.  On Strategy Map 2 – Urban Areas, the subject land is mapped as Business and Industry, and the land on the opposite side of Warwick Road that is in the Major Centre Zone is mapped as “Other Major Centres”.
  4. [88]
    Having regard to those matters, one readily discerns a strong planning policy to create and protect a network of centres that serve the retail functions of the City and supports the development of Ipswich City Centre as a key centre for the western sub-region of South East Queensland.  Various assessment benchmarks align with and support the achievement of this policy.[56]  The centre strategy includes the provision of Major Centres that “service the main convenience and comparison shopping needs of the City’s residents”.[57]  The Yamanto Major Centre is to provide that function.  It is in the Major Centre Zone and is opposite the subject land. 
  5. [89]
    In the Major Centres Zone, a Shopping Centre and each of the uses in the Business Use class are either consistent uses or are identified as uses that are:

“consistent with the outcomes sought for the Major Centres Zone if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds”.

(emphasis added)

  1. [90]
    The same extent of support and encouragement is not provided to a Shopping Centre and a “Business Use (bulky goods sales)” in the Local Business and Industry Zone.  That is evident from the following matters. 
  2. [91]
    At a broad level, there is support for land in the Local Business and Industry Zone to be used to provide local employment and to diversify the economic base.  The overall outcomes sought for the Local Business and Industry Zone include that:
  1. uses and works within the zone are to support the business and industry strategy contained in the Strategic Framework, including by:
  1. providing local employment opportunities to ensure that there is a high level of employment self-containment across the City; and
  2. improving the diversification of the economic base of the City by promoting the City’s economic strengths and potential; and
  1. a mix of compatible business and industry activities is established, including commercial, service and trade activities, and appropriate low impact manufacturing activities, that support and are proximate to Major or Neighbourhood Centres.[58]
  1. [92]
    That said, a fulsome consideration of the Planning Scheme reveals that the encouragement for uses that provide employment and diversification is not unconstrained.  The overall outcomes referred to in paragraph [91] above appear in conjunction with overall outcomes which stipulate that:
    1. uses and works are not to compromise or jeopardise the intended retail and service functions of the City Centre; and
    2. new uses and works are established on fully serviced land; and
    3. uses and works are to cater to the needs of the local community.[59]
  2. [93]
    The more detailed provisions of the Planning Scheme, such as the specific outcomes for the various sub-areas of the Local Business and Industry Zone, provide further guidance on the employment opportunities and the nature of diversification that is encouraged.  Relevantly, the subject land is in Sub Area LB6 – Yamanto. 
  3. [94]
    The specific outcomes in s 4.11.4(6) of the Planning Scheme identify various planning constraints on the development of land in Sub Area LB6 – Yamanto.  Kelly Consolidated Pty Ltd does not dispute the assertions of the Council and Yamanto Holdings Pty Ltd that the proposed development complies with many of the specific outcomes, including those related to building height,[60] streetscape and visual or aesthetic considerations,[61] nearby residential amenity,[62] the operation of the road network and access,[63] and sewerage infrastructure.[64]  Compliance with those assessment benchmarks is a matter that supports approval, but it is not the focus of dispute.
  4. [95]
    Of greater significance in this case is the specific outcome in s 4.11.4(6)(g).  It identifies that the land in Sub Area LB6 – Yamanto is to provide a business mix that includes, amongst other things, “bulky goods retailing and retail warehouses” and “commercial uses which directly service the surrounding local population”.  The provision of the mix of uses on land in the Sub Area is to “support the intended business functions of the Yamanto Major Centre”.[65] 
  5. [96]
    The specific outcome in s 4.11.4(6)(g) does not provide unqualified support for use of the subject land for bulky goods retailing and retail warehouses.  That use is but one of a mix of uses that is encouraged on land in Sub Area LB6 – Yamanto.  The extent to which any particular use in the contemplated mix is supported is a question of fact and degree.  The answer will depend on whether, in an impact assessment, it is demonstrated that the proposed use supports the intended business functions of the Yamanto Major Centre.  This is the underlying planning goal that is to be achieved when providing a mix of business and industry uses on land in Sub Area LB6 – Yamanto.
  6. [97]
    The requirement that uses on the subject land support the intended business functions of the Yamanto Major Centre is a carefully considered planning policy.  It is a policy that reflects the prevailing nature of the area and the circumstances of the subject land and its surrounds.  This is revealed by reading the specific outcome in s 4.11.4(6)(g) in the context of the specific outcomes about the intended business mix for each of the Sub Areas of the Local Business and Industry Zone.[66] 
  7. [98]
    It is evident from the specific outcomes in s 4.11.5(1), (2) and (3) and Table 4.11.1 of the Planning Scheme that each Sub Area is intended to provide a different mix of business uses and is to achieve planning goals that are tailored to the Sub Area.  In those provisions, a bulky goods sales use is:
    1. excluded from the list of business uses that are consistent uses in the Local Business and Industry Zone; and
    2. included in the list of uses that are consistent only “if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds”. 
  8. [99]
    For each Sub Area, there is a unique specific outcome that identifies the mix of business uses sought in the Sub Area.  These specific outcomes about land use mix provide guidance in relation to the appropriateness of a bulky goods sales use in each Sub Area.
  9. [100]
    In some Sub Areas of the Local Business and Industry Zone, such as Sub Area LB6 – Yamanto, “bulky goods retailing” is a use that is contemplated provided the use supports the intended business functions of a nearby centre.[67]  In other Sub Areas of the Local Business and Industry Zone, land is encouraged to be used for “business use” if it directly serves the surrounding local population.[68]  In yet other locations, land in a Sub Area of the Local Business and Industry Zone is contemplated for a “bulky goods retailing” use if such a use provides for local business and employment opportunities.[69] 
  10. [101]
    The conditional nature of the encouragement for the proposed development on the subject land is also apparent from the overall outcomes for the Local Business and Industry Zone.  They reveal that the purpose of the zone is to provide a mix of compatible business and industry activities.  When those provisions are read in the context of the whole Planning Scheme, one readily discerns a planning policy to ensure land in that zone:
    1. provides a diverse range of activities; and
    2. takes advantage of the economic potential, the comparative advantages and the competitive strengths of the Sub Area by using the land for the preferred uses nominated for the Sub Area. 
  11. [102]
    To the extent that the mix of land uses for each Sub Area of the Local Business and Industry Zone includes retail uses, they are not to compromise or jeopardise the intended retail function of the City Centre or the designated Major Centres and Neighbourhood Centres.  Consistent with that requirement, uses are to cater to the needs of the local community.

Conclusion about whether the proposed development is explicitly supported

  1. [103]
    I accept the submission of Yamanto Holdings Pty Ltd that one cannot conclude that the proposed development is not explicitly supported merely because it only provides one of the uses that is encouraged for Sub Area LB6 – Yamanto.  The aerial extent of Sub Area LB6 – Yamanto is far greater than that part of the subject land that is sought to be used for the proposed development.  As such, it is not determinative of this issue that the proposed development does not provide all the envisaged land uses.
  2. [104]
    Having regard to the matters outlined above, I find that use of the subject land for bulky goods retailing is contemplated in certain circumstances.  The Planning Scheme does not explicitly support the proposed development on the subject land.  Whether the proposed development is supported by the Planning Scheme is a question of fact to be determined having regard to:
    1. the parameters of the proposed development; and
    2. the need for, and the economic impact of, the proposed development.
  3. [105]
    Together, those matters will inform whether the proposed development, with the extent of bulky goods sales uses proposed:
    1. is of a scale appropriate for the prevailing nature of the area and the circumstances of the subject land and its surrounds; and
    2. will support the intended business functions of the Yamanto Major Centre. 
  4. [106]
    The Planning Scheme does not provide a quantitative measure for scale or support.  Rather, whether the precise quantum of a proposed bulky goods sales use is such that it supports, or detracts from, the intended business functions of the Yamanto Major Centre is a question of fact and degree. 
  5. [107]
    I have already considered the parameters of the proposed development in paragraphs [53] to [59] above.  It is now convenient to turn to the evidence about the need for, and the economic impact of, the proposed development.

Is there a need for, and an absence of adverse economic impact occasioned by, the proposed development?

  1. [108]
    As I have mentioned above, the nature and extent of the need for, and economic impact occasioned by, the proposed development is a matter that informs an assessment against the assessment benchmarks.  The existence of a need for the proposed development is also relied on by Yamanto Holdings Pty Ltd as a relevant matter under s 45(5)(b) of the Planning Act.

What are the general principles that inform and guide an assessment of need?

  1. [109]
    The general principles that inform and guide an assessment of need are well-settled.  Many of them are conveniently summarised in Isgro v Gold Coast City Council & Anor,[70] wherein His Honour Judge Wilson SC (as His Honour then was) stated:[71]

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

  1. [110]
    Need, in the town planning sense, does not mean a pressing need, a critical need, or even a widespread desire but relates to the well-being of the community.[72]  Planning need is also not limited to the need for the proposed development on the particular site in question and no other site.  The existence of other sites for which the proposed development is permitted under the applicable code may be a relevant matter, depending on all the circumstances of the case.[73]
  2. [111]
    It must be remembered that these are general statements of principle that inform and guide an assessment of need.  They are not a checklist that must be established in every case.  Rather, the assessment of need in this context is a flexible process.  This has long been recognised and was again confirmed by the Court of Appeal recently in Yorkeys Knob BP Pty Ltd v Cairns Regional Council.[74] 
  3. [112]
    Need is a relative concept to be given a greater or lesser weight depending on all the circumstances that the decision maker is to consider.[75]  Those circumstances include the guidance provided by the Planning Scheme.  Whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors.[76]  At the end of the day, whether there is a need for a proposed development is a question of fact.[77]
  4. [113]
    With those general principles in mind, it is convenient to now consider the evidence.

What is the available evidence?

  1. [114]
    To assist me with whether there is a need for, and an absence of adverse economic impact occasioned by, the proposed development, I was provided with evidence that included (but was not limited to):
  1. expert evidence of Mr Tony Dimasi, Mr Jon Norling and Mr Gavin Duane, the economics experts retained by Yamanto Holdings Pty Ltd, the Council and Kelly Consolidated Pty Ltd respectively.  This evidence was provided by way of:
  1. Need Joint Report dated 9 February 2022;[78]
  2. Expert Evidence Report (Economic Need) of Tony Dimasi dated 19 April 2022;[79]
  3. Individual Statement of Evidence of Gavin Duane dated 29 April 2022;[80]
  4. Anthony Dimasi – further statement of reply dated 30 May 2022;[81]
  5. Further Economic Need Joint Report dated 14 July 2022;[82]
  6. Second Individual Statement of Evidence of Gavin Duane dated 9 September 2022;[83]
  7. Supplementary Report of Jon Norling dated 14 October 2022;[84]
  8. Anthony Dimasi – Separate Report dated 16 October 2022;[85]
  9. oral testimony during the hearing; and
  1. expert evidence of Mr Christopher Schomburgk, Ms Rebecca Owens and Mr Leo Mewing, the town planners retained by Yamanto Holdings Pty Ltd, the Council and Kelly Consolidated Pty Ltd respectively.  Their evidence was provided by way of:
  1. Joint Experts Report – Town Planning dated 25 February 2022;[86]
  2. Statement of Evidence of Leo Mewing dated 27 April 2022;[87]
  3. Supplementary Town Planning Joint Expert Report dated 5 August 2022;[88]
  4. Supplementary Statement of Evidence of Leo Mewing dated 11 September 2022;[89]
  5. oral testimony during the hearing; and
  1. the Statement and Further Statement of Victoria Jane Levy, the General Manager of the management company for retail assets owned by Kelly Consolidated Pty Ltd.[90]
  1. [115]
    In their joint and individual reports, the economics experts express opinions about the need for, and the economic impacts of, the development proposed by Yamanto Holdings Pty Ltd.  As can be seen from the dates of the reports listed above, some of the reports were prepared by the experts before Yamanto Holdings Pty Ltd changed its development application, which occurred during the hearing.[91]  As such, in some of the reports, their opinions relate to a different form of development than that which is to be assessed by me. 
  2. [116]
    It was not possible to simply set aside the earlier reports.  The later reports cross-reference some parts of the earlier reports and, with respect to some matters, express opinions by indicating that tables and analysis in the earlier reports should be replaced with tables and analysis identified set out in the later report.  The way the experts addressed the changes to their opinions did not provide complete clarity about which parts of the analysis from the earlier report was no longer relevant.  It was difficult to reconcile the contents of the many reports, ascertain the assumptions that underpinned the experts’ opinions, and distil the analysis that informed their opinions.
  3. [117]
    Developers may proceed to trial on a changed development application where the change is no more than a minor change.[92]  However, where a developer elects to make a change, and does not undertake the exercise of assessing how the change impacts on the probity of the evidence prepared prior to the change, the developer assumes a more difficult hurdle.  Depending on the nature of the change, it may adversely affect the quality of the evidence.  It may jeopardise the relevance of evidence prepared before the development application is changed.  Depending on how subsequent evidence is prepared and presented, the coherence of the evidence overall may also be adversely affected.  As will be evident from the reasons that follow, this is a case where the developer elected to assume that more difficult hurdle.[93]

What assistance is provided by the reports prepared prior to the minor change?

  1. [118]
    In the Need Joint Report dated 9 February 2022, the opinions expressed by the experts are informed by, amongst other things:
  1. existing population levels and forecast population growth in the City of Ipswich as compared to those for a defined study area (“the Study Area”) comprised of six sectors, which are identified by reference to a map as:
  1. Yamanto – Raceview – Deebing;
  2. Willowbank – Purga;
  3. Boonah;
  4. Rosewood – Walloon;
  5. Ripley; and
  6. Leichhardt – One Mile;
  1. trends in large format retailing and dedicated homemaker centres in Australia;
  1. with reference to the definition of bulky goods sales from the Planning Scheme, their agreed position as follows:

“16. The experts note that some large format retail tenants or bulky goods sales outlets do not solely sell bulky goods, but a combination of bulky goods and smaller goods, in different proportions for different tenants. Whether future tenants of the subject proposal are bulky goods sales outlets or not will ultimately be the domain of other experts.

  1. We also note that the terms Bulky Goods Sales, Large Format Retail and Showrooms are typically used interchangeably for the majority use proposed for the Subject Site. For this Appeal, we will use the term, Bulky Goods Sales to align with the Scheme’s definition, but again note whether future uses operate within than definition or not is for future applications.”
  1. the existing supply of large format retail floorspace and trade or showroom retail floorspace, such as paint, plumbing and flooring retailers, in the Study Area;
  2. the experts’ respective opinions about what parts of the Study Area would form primary, secondary and tertiary trade areas for the large format retail development that was proposed as the time of the preparation of the report;
  3. the experts’ respective opinions about the demand for the large format retail development as proposed by Yamanto Holdings Pty Ltd prior to the minor change to the development application; and
  4. the experts’ respective opinions about the economic impacts of the form of development proposed by Yamanto Holdings Pty Ltd prior to the minor change to the development application.
  1. [119]
    With respect to population projections, the economics experts agree that:
  1. Ipswich is one of the fastest growing local government areas in Queensland;
  2. in the period from 2021 to 2036, the population of the Study Area is projected to:
  1. experience annual growth of 6.1 per cent; and
  2. more than double from 65,766 persons in 2021 to 160,276 persons in 2036; and
  1. the predicted annual growth rate in the Yamanto – Raceview – Deebing sector is 1.9 per cent as compared to 15.6 per cent in the Ripley sector.
  1. [120]
    The experts explained the foundation for their population projections.  I accept their evidence in this regard.  I also accept the evidence of Mr Norling that the strong growth in the Ripley sector should be met in that area.
  2. [121]
    With respect to trends in large format retailing and dedicated homemaker centres in Australia, the economics experts agree that large format retailing has evolved over the years and incorporates bulky goods and retail showroom uses.  Large format retailing includes categories such as automotive parts, accessories, repairs and services, camping, outdoor and recreation goods, electrical supplies, light fittings, pet supplies, window coverings, furniture, bedding, furnishings, fabric, Manchester and homewares, household appliances, household electrical goods and home entertainment goods, party supplies, swimming pools, office equipment and supplies, baby and children’s play equipment and accessories, hardware and landscape garden supplies, and other items of a bulky nature that require a large area for handling, display or storage, or direct vehicle access to the site or the premises by the public for the purpose of loading goods into a vehicle after purchase or hire.
  3. [122]
    In the joint opinion of the economics experts, planning regimes across all states have been slow to react to this trend and have experienced difficulties in strictly defining what is bulky goods or large format retail as compared with shops, particularly as large format showroom retailing continues to evolve.  The economics experts says that this is despite the role and function of large format retail or showroom retailing, and its historical popularity with consumers, being quite well understood.
  4. [123]
    I accept this evidence of the economics experts about trends in large format retailing and dedicated homemaker centres in Australia.  I also accept their joint opinion that:

“53. The Subject Site has the attributes for a successful bulky goods/large format retail/homemaker centre. These include:

  • A large site area.
  • Exposure to a major road such as Warwick Road.
  • A design incorporating tenants that are served by accessible car parking.
  • The ability to incorporate a variety of tenant sizes.
  • Proximity to the Yamanto Major Centre.”
  1. [124]
    In addition, I accept that the economics experts regard the terms bulky goods sales, large format retail and showrooms as typically used interchangeably.  Their approach is understandable given the nature of the development application that they were to consider at the time they expressed that opinion.  Their opinion is also informed by their experience dealing with the retail sector and their knowledge of the trends in large format retailing and dedicated homemaker centres in Australia. 
  2. [125]
    Although I respect the perspective of the economics experts, I do not accept that it is legitimate to ignore the differences between a large format retail use and a bulky goods sales use in this case. 
  3. [126]
    Kelly Consolidated Pty Ltd says that the initial reports assessed the wrong use.  The Council submits that this allegation involves an “unduly technical approach”.  I reject the Council’s submission. 
  4. [127]
    I also reject Mr Dimasi’s opinion that the difference between the definition of bulky goods sales and large format retail and showrooms is inconsequential semantics.[94]  It is reasonable to expect that the evidence of the economics experts would be directed to the form of development that the Court is to assess and not some other form of development.[95]
  5. [128]
    In this case, there is a relevant difference between:
    1. a use that fits the definition of bulky goods sales, which is now proposed for the subject land that I must assess; and
    2. a use of premises for the type of retail that is typically referred to in the retail sector as large format retail and showrooms. 
  6. [129]
    In his individual report dated 29 April 2022, Mr Duane indicated that the need analysis in the Need Joint Report dated 9 February 2022 may no longer be appropriate given these differences.  I agree. 
  7. [130]
    Several matters highlight why the earlier opinions are unreliable.  They include the fact that: 
  1. the decision of the economics experts to treat the terms bulky goods sales, large format retail and showrooms as interchangeable informed their analysis in the Need Joint Report dated 9 February 2022, and Mr Dimasi’s analysis in his Expert Evidence Report (Economic Need) dated 19 April 2022 about:
  1. the parts of the Study Area that would form primary, secondary and tertiary trade areas for the large format retail development;
  2. the demand for large format retail development; and
  3. the economic impacts of large format retail development,

being the form of development proposed by Yamanto Holdings Pty Ltd prior to the minor change to the development application; and

  1. the Need Joint Report dated 9 February 2022 did not reveal the extent to which each expert considered that a use that involved only “bulky good sales” overlaps with the broader retail use of large format retailing, nor identify how any such overlap might impact their assessment of need.
  1. [131]
    For the reasons provided above, I am not persuaded that the economics experts’ evidence about the matters in paragraphs [118](d) to [118](g), that was prepared prior to the change to the development application, provides material assistance in assessing the development now proposed.
  2. [132]
    Further, I am not persuaded that I should accept the ultimate opinions that the economics experts express in the early reports.  Given the matters that informed those opinions, I am not confident that the conclusions are valid and appropriate for the proposed development as changed.

What do the reports prepared after the minor change address?

  1. [133]
    The development, as now proposed, was considered by the economics experts in the Further Economic Need Joint Report dated 14 July 2022, the Second Individual Statement of Evidence of Mr Duane dated 9 September 2022, the Supplementary Report of Mr Norling dated 14 October 2022, Mr Dimasi’s Separate Report dated 16 October 2022, and during oral testimony. 
  2. [134]
    In the Further Economic Need Joint Report, Mr Dimasi opines that the subject land is a suitable, indeed ideal, site for the proposed development.  He says that the proposed development would provide substantial local employment opportunities, increase the level of convenience and amenity for bulky goods shopping for the Study Area residents, and diversify the economic base of the Yamanto area.  In Mr Dimasi’s opinion, the proposed development would support the Yamanto Major Centre by providing necessary secondary retailing facilities in an appropriate location.  He considers that there is a high level of community and economic need for the proposed development currently, and that such need is increasing rapidly with each passing year.  In Mr Dimasi’s view, the proposed development would not compromise or jeopardise the Yamanto Major Centre and other higher order centres, nor compromise or undermine the centres hierarchy. 
  3. [135]
    Although expressed in more moderate terms, Mr Norling holds similar views to those of Mr Dimasi.
  4. [136]
    Mr Duane is not supportive of the proposed development.  He accepts that the subject land has the attributes to incorporate large format retail facilities and that the proposed development would provide local employment opportunities and retain spending in the Yamanto area if it was appropriately tenanted.  However, he expresses doubt about whether it will be tenanted at the size proposed.  He also opines that the proposed development would retard the opportunity for Yamanto Major Centre to incorporate large format retail or bulky goods sales uses.  Mr Duane accepts that the proposed development would, in part, cater for local community need.  However, he says that at the size proposed, it would need to serve a much broader area.  He is also of the view that there are alternative sites throughout the region that can accommodate the demand for large format retail and bulky goods centres including Yamanto Major Centre and Ripley Valley Town Centre.  Overall, Mr Duane opines that there is no need for both the proposed development and the new Yamanto Shopping Centre approval to proceed over the period to 2026 or during a period well beyond that date.
  1. [137]
    There is no material change to the ultimate opinions expressed by Mr Dimasi as compared to those which he expresses in the earlier reports.  Mr Norling’s opinion is tempered.  However, the analysis that underpins their respective opinions differs materially from that revealed in the Need Joint Report dated 9 February 2022.  In the more recent reports, there is disagreement between the experts about:
    1. the demand for bulky goods sales;
    2. the supply of retail facilities to address the demand;
    3. the need for the proposed development; and
    4. the potential impact of the proposed development.  
  1. [138]
    I will now address each of these differences in turn.

What is the demand for bulky goods sales uses?

  1. [139]
    To gauge the extent of the demand for bulky goods sales, the economics experts considered each of the large format retail store operators in south east Queensland to assess, broadly, the likely proportion of those that would fit the definition of bulky goods sales.  This was then used to form an opinion about what percentage of large format retail demand would be demand for bulky goods sales.
  2. [140]
    It is readily apparent from the Further Economic Need Joint Report and the oral evidence of the economics experts that they considered the exercise of determining whether a retail use would fit the definition to be a difficult task.  In that report, they explained their view that a bulky goods sales use is a theoretical construct imposed by the Planning Scheme in 2006 that places constraints over which large format retail tenants could be classified as bulky goods sales.  The experts consider the definition to be nebulous and non-reflective of recent retail trends.  Nevertheless, they used their best endeavours to form a view about the demand, and need, for the proposed development.
  3. [141]
    In forming their opinions, Mr Dimasi, Mr Norling and Mr Duane each undertook field inspections to varying extents.  They each also explained how they approached the definition and the classification task. 
  4. [142]
    Mr Dimasi’s opinion is based on his view about whether the retailer stocks primarily bulky goods (i.e., at least 50 per cent of its floor space is dedicated to the display of bulky goods).  Mr Dimasi also considered that the extent to which a store dedicates more than 50 per cent of its floor space to non-bulky goods is a matter that could be easily adjusted by the operator removing items from the range or altering how stock is displayed.  Mr Dimasi also includes trade stores, such as Reece Plumbing, and stores that he regards to be classified as bulky goods sales uses based on their presentation and common sense. 
  5. [143]
    In their exercise, Mr Norling and Mr Duane consider whether the retailer sells bulky goods, whether they indicatively dedicate more than 50 per cent of the floor space in the sales area of the store to the display of bulky goods, and whether non-bulky goods are likely to be sold as ancillary to bulky goods offered for sale.  They also include those retailers that are dedicated to the sale of floor coverings and tiles; furniture; domestic appliances such as washing machines, dishwashers, clothes dryers, refrigerators, hot water systems, air-conditioning systems and the like; and building and construction materials and fittings with or without hardware.  Mr Norling and Mr Duane’s assessment of need does not take account of the demand for trade sales, but they each consider such demand would be low. 
  6. [144]
    Mr Dimasi opines that 84 to 86 per cent of large format retail stores involve a bulky goods sales use, whereas Mr Norling opines that the relevant proportion is 73 to 74 per cent.  Although Mr Duane is prepared to adopt Mr Norling’s percentage for the purpose of calculating demand, he considers the proportion to be closer to 70 per cent. 
  7. [145]
    The key areas of difference between the classifications adopted by the experts can be explained by reference to four broad types of retailers. 
  8. [146]
    With respect to retailers that sell domestic appliances, several retailers have around 50 per cent of their floorspace devoted to bulky goods with the remainder being smaller household electrical items, phones, computers, and the like.  Mr Duane notes that applying a construction of the definition adopted by Kelly Consolidated Pty Ltd, these retailers would not meet the bulky goods sales definition in the Planning Scheme.  However, as bulky goods occupy around 50 per cent of the floorspace, he conservatively includes them as comprising a bulky goods sales use.
  9. [147]
    For retailers that are directed at pets, toys and other miscellaneous items, Mr Dimasi says that tenants such as Baby Bunting, Clark Rubber, Pet Stock and Pet Barn are a bulky goods sales use.  Baby Bunting stocks a large amount of apparel, dummies, toys and the like that are not bulky goods or sold ancillary to bulky goods.  Similarly, Pet Stock and Pet Barn sell animal food, clothing and toys that are not bulky goods or sold as ancillary to bulky goods.  In Mr Duane’s view, bulky goods occupy less than 50 per cent of the floorspace.
  10. [148]
    In terms of homewares retailers, Mr Dimasi says that Spotlight is a bulky goods sales use.  Spotlight sells party supplies, stationary, children’s toys, towels, etc., which are not bulky goods or goods sold as ancillary to bulky goods.  Mr Dimasi and Mr Norling also regard Pillowtalk as a bulky goods use store.  However, during cross-examination it was revealed that Mr Norling assumed that Pillowtalk sold beds.  His assumption was based on his observance of beds in the store window.  He accepted that he may be wrong, and that the beds may be no more than the vehicle to display the sheets and quilt covers sold by the retailer.  In Mr Duane’s view, bulky goods occupy less than 50 per cent of store floorspace in stores such as Spotlight.
  11. [149]
    For sporting goods retailers, Mr Dimasi says that Anaconda and BCF are bulky goods sales uses.  In Mr Duane’s view, these retailers sell a large proportion of clothing, fishing rods and shoes that would not be classified as goods sold ancillary to bulky goods.  In his view, bulky goods occupy less than 50 per cent of store floorspace.
  12. [150]
    Kelly Consolidated Pty Ltd contends that none of the economics experts have adopted an approach to classifying the retailers that accords with the requirements of the definition of bulky goods sales.  It says that for a retail store to fall within the defined use of “bulky goods sales”:
  1. there must be a building with a gross floor area of greater than 500 square metres;
  2. the retail store must sell bulky goods that are of a size, shape or weight as to require:
  1. a large area for handling, storage or display; and
  2. direct vehicular access for the purpose of loading into or onto vehicles; or
  1. the retail store must sell goods that are:
  1. floor coverings and tiles;
  2. furniture;
  3. domestic appliances such as washing machines, dishwashers, clothes dryers, refrigerators, hot water systems, air-conditioning systems and the like; or
  4. building and construction materials and fittings with or without hardware.
  1. [151]
    In his individual report, Mr Duane examines the matter further and, adopting the approach to construction urged by Kelly Consolidated Pty Ltd, opines that the proportion of large format retail uses that are bulky good sales uses may be as low as 64 to 69 per cent.  For example, in terms of hardware type stores, Mr Duane considers that, on the approach advocated by Kelly Consolidated Pty Ltd, Beacon Lighting would not be a bulky goods sales use.
  1. [152]
    None of the experts provided revised demand calculations reflecting this revised assumption, i.e., the approach advocated by Kelly Consolidated Pty Ltd.
  2. [153]
    Kelly Consolidated Pty Ltd submits that the assessment of supply, demand and need undertaken by the economics experts is inadequate.  It submits that none of the experts properly understood the use for which Yamanto Holdings Pty Ltd has applied.  As such, according to Kelly Consolidated Pty Ltd, the experts’ analysis of the proportion of the demand for large format retail that is comprised of demand for bulky goods sales uses is flawed.  In support of its submission, Kelly Consolidated Pty Ltd provides multiple examples where the experts have classified retailers as having a bulky goods sales use in circumstances where Kelly Consolidated Pty Ltd says the retailers do not fit the definition.  Kelly Consolidated Pty Ltd submits that these examples undermine the quantitative analysis of demand, and in turn the analysis of need, undertaken by the experts.
  3. [154]
    Kelly Consolidated Pty Ltd submits that the consequence of the failure to properly assess demand, and need, is that:
    1. the impacts on the planned centre at Ripley cannot be properly assessed;
    2. the impacts on the Yamanto Major Centre, including the extant approval recently received, cannot be properly assessed or understood; and
    3. the impact on other centres cannot be properly assessed.
  4. [155]
    Yamanto Holdings Pty Ltd and the Council reject these assertions.  They submit that it is not appropriate to attempt to determine, as part of this appeal, whether various traders who may seek to establish in the proposed development, were it to be approved, are bulky goods sales uses. 
  5. [156]
    I agree with Yamanto Holdings Pty Ltd and the Council.  Determinations about whether identified traders fit the definition of bulky goods sales uses is a question of fact.  It calls for consideration of the range of items proposed to be sold by the retailer in question, which may vary from store to store.  However, general considerations of the type referred to by Kelly Consolidated Pty Ltd are not irrelevant.
  6. [157]
    It should be borne in mind that the extent of unsatisfied demand, and unmet need, for a particular retail facility is not a matter that is capable of precise prediction by reference to fixed formulas.  It is a matter about which reasonable minds might differ.  As such, it is critical that the experts reveal the assumptions that underpin their opinions so that the validity of their assumptions may be tested, and the cogency of their opinions evaluated. 
  7. [158]
    The reports prepared prior to the commencement of the hearing, and relied on at the outset of the hearing, were inadequate in that regard.  This is unsurprising given the change that was made to the development application on the first day of the trial.  The experts’ subsequent reports appropriately reveal the approach adopted. 
  8. [159]
    Having considered all the evidence of the economics experts about the assumptions made, particularly their cross-examination, I am not persuaded, on the balance of probabilities, to accept the quantitative analysis of demand, and need, undertaken by the economics experts.  Two pertinent observations can be made in that regard.
  9. [160]
    First, for present purposes I am prepared to accept the evidence of the economics experts that the definition of business use (bulky goods sales) in the Planning Scheme, adopted in 2006, is a theoretical construct and is not apt to reflect recent trends with large format retail establishments.  Nevertheless, its relevance in this case cannot be ignored or glossed over.  Yamanto Holdings Pty Ltd elected to adopt the definition to define the parameters of its proposed development.  It was not constrained by Planning Scheme definitions when making its development application.  It could have applied for a use that reflects recent retail trends.  It did not.
  10. [161]
    Second, the quantitative assessments undertaken by the economics experts are critical to the opinions they express about the demand, and need, for the proposed development.  That analysis is underpinned by the experts’ opinions about which retail traders fit the definition of bulky goods sales.  Although I accept that the experts have applied their best efforts to analyse the need for the proposed development, I have serious reservations about the appropriateness of their classifications.
  11. [162]
    Mr Dimasi’s approach pays far too little regard to the definition of bulky goods sales.  His “common sense” approach at classifying retail traders as comprising bulky goods sales appears to largely reflect recent retail trends and to include those stores typically found in a homemaker centre.  Many of his photographs of stores that he says are a bulky goods sales use show non-bulky items such as toys, flowers, tea-towels and cushions.
  12. [163]
    I also have doubts about the classifications made by Mr Norling.  My doubts in this regard can be explained by reference to his assumption about Pillowtalk.  This is but one example of a classification that causes me to doubt Mr Norling’s evidence.  It gives me cause for concern about the extent of care taken by Mr Norling in undertaking his classification exercise.
  13. [164]
    Although the exercise undertaken by Mr Duane to classify each retailer was more thorough than that of Mr Norling and Mr Dimasi, I am not persuaded that all his classifications are appropriate either.  Further, and in any event, Mr Duane does not provide a quantitative assessment of demand.  Instead, for convenience, Mr Duane adopts Mr Norling’s quantitative assessment but records his reservations about its efficacy.
  14. [165]
    On my review of the various photographs and descriptions of retailers given by the experts, I have serious reservations about several of the experts’ classifications.  This leaves me uncertain about the extent of the demand for bulky goods sales uses.

What is the supply of retail facilities to address the demand?

  1. [166]
    In the Need Joint Report dated 9 February 2022, the economics experts detail the existing supply of large format retail floorspace and trade or showroom retail floorspace, such as that offered by paint, plumbing and flooring retailers, in the Study Area. 
  2. [167]
    The total estimated large format retail and trade or showroom floorspace within the City of Ipswich is approximately 110,000 square metres.  Approximately 54 per cent of the supply is in freestanding locations, with the balance provided within integrated centres. 
  3. [168]
    The provision of modern, integrated homemaker centres within the City of Ipswich is limited.  There is a collection of large format retailers located around the Harvey Norman store at Booval that, together with the Harvey Normal store, total in the order of 12,650 square metres.  There is an estimated 10,400 square metres of large format retail at the Ipswich Homebase Centre in West Ipswich, which is a hybrid centre.  It includes other types of retailers, such as a small IGA supermarket, Chemist Warehouse and a large apparel retailer.  There is also a limited collection of large format retail provided as part of the Ipswich Riverlink Shopping Centre, totalling in the order of 7,000 square metres.
  4. [169]
    The existing large format retail floorspace provision within the City of Ipswich is dominated by Bunnings Hardware stores.  There are four Bunnings stores that cumulatively account for 46,677 square metres or some 42 per cent of the total large format retail floorspace.
  5. [170]
    Within the Study Area, the provision of large format retail floorspace is particularly limited.  The only large format retail facilities situated within the Study Area are Super Cheap Auto, Amart Furniture, Reece Plumbing and Carpet One in Yamanto, and the Bunnings Trade Centre at Raceview.
  6. [171]
    The proposed development, with almost 19,000 square metres of bulky goods sales uses, will be the largest concentration of such facilities within the Ipswich local government area.  It will be significantly larger than the next largest facilities, being the Harvey Norman centre at Booval and Ipswich Homebase Centre.
  1. [172]
    There are many retailers that are not represented within the City of Ipswich.  Mr Duane and Mr Norling opine that the provision of large format retail (and bulky goods sales) is lower in Ipswich than in other areas of Australia for geographic and social reasons.  One such reason is that the City of Ipswich has a low population that is dispersed across a large geographic area.  This discourages a concentration of large format retail facilities from establishing in any one location.  Also, the higher end large format retailers would not be attracted to serve the market because of the lower incomes of residents more broadly throughout Ipswich.  Another reason is that there are large format retail centres in accessible locations beyond the City of Ipswich such as at Jindalee, Sinnamon Park and Oxley.  Retailers at those locations that attract business from Ipswich residents.  Indeed, for residents of Springfield, the large format retail centres outside of the Ipswich local government area are more accessible than the centres at Booval and Ipswich West.
  1. [173]
    I accept this evidence.
  2. [174]
    Mr Norling and Mr Duane also opine that there are many locations that can incorporate bulky goods uses in the City of Ipswich.  They include:
    1. HomeCo Springfield, which is a former Masters site of around 14,000 square metres.  It is currently being refitted and re-leased as a lifestyle centre that will offer a net lettable area of 10,183 square metres;
    2. a premises at 448-456 Warwick Road, Yamanto that was approved in November 2021 to be used for 1,860 square metres of bulky goods sales;
    3. a premises in the Yamanto Shopping Village that was approved in July 2020 to extend its bulky goods sales by 295 square metres; and
    4. other parcels of land within and adjoining other Major Centres, such as Ripley Town Centre and Springfield, which are designated for bulky goods sales use.
  3. [175]
    According to Mr Norling and Mr Duane, the Ripley Valley Town Centre is planned to comprise up to 250,000 square metres of floorspace, 100,000 square metres of which is to comprise low intensity retail floorspace, including large format retail uses.
  4. [176]
    Mr Dimasi does not consider it appropriate to consider all such locations when assessing the supply.  In particular, Mr Dimasi says:
    1. the former Masters site is to be repurposed to medical and childcare uses;
    2. there are presently no proposals for any large format retail developments at Ripley Town Centre or Springfield; and
    3. the Springfield Town Centre is 15 years into development and has minimal floorspace dedicated to large format retail.  Mr Dimasi suggests that it is likely to be some time before Ripley Town Centre advances to a stage where large format retail uses will be provided.
  1. [177]
    I accept Mr Dimasi’s evidence in this regard.  That said, it is of little moment.  This is because Mr Norling and Mr Duane do not include them in their quantitative analysis.
  1. [178]
    Of greater moment is the difference between the experts about the relevance of:
    1. those uses that comprise trade showrooms; and
    2. the new Yamanto Shopping Centre approval.

Is the supply of trade showroom floorspace relevant?

  1. [179]
    The quantitative analysis prepared by Mr Norling, and adopted for convenience by Mr Duane, does not account for the demand for, nor the supply of, trade showrooms. 
  2. [180]
    Mr Duane accepts that most trade showrooms would involve a bulky goods sales use.  However, Mr Norling and Mr Duane opine that large format retail centres in integrated format do not typically incorporate trade showrooms.  They say that trade showrooms are typically located on stand-alone sites as they do not require a location that provides an opportunity for customers to cross-shop.  Mr Duane says this is evidenced by reviewing the location of existing trade showroom floor space in the Ipswich local government area and the tenancy mix of the existing large format retail centres.  The existing large format retail centres include a very limited number of trade showrooms and, where they are present, some are less than 500 square metres in area.  Mr Duane also opines that there are many available sites that would be suitable for, and attractive to, trade showroom retailers, including on much of the land in the Major Centre Zone at Yamanto. 
  3. [181]
    Mr Dimasi disagrees with the exclusion of trade showrooms from consideration.  He says that some trade showrooms are located within homemaker centres.  Examples include those that sell pool supplies or flooring.  In any event, he says that the result of the demand and supply analysis shows the level of unmet need for large format retail floorspace.  He says that it is reasonable to assume that some trade showroom floorspace would be accommodated in the proposed development.
  4. [182]
    I accept that trade showrooms are typically located on stand-alone sites.  I also accept that it is reasonable to assume that a percentage of trade showroom floorspace would be accommodated in the proposed development.  The extent to which allowance is made for trade showrooms, and the way the demand for and supply of trade showrooms is considered, involves an exercise of judgment.  It is an issue about which reasonable minds might differ. 
  5. [183]
    Ultimately, the differences in approach by the experts on this issue is of little consequence to the weight that I am prepared to attribute to the opinions expressed by the economics experts about the need for, and impact of, the proposed development. 

Is the new Yamanto Shopping Centre approval limited in the extent to which it can cater to the demand for bulky goods sales?

  1. [184]
    It is common ground between the economics experts that, at least in part, the new Yamanto Shopping Centre approval can address the presently unmet demand.  The experts disagree about the extent to which it will do so.  Mr Dimasi and Mr Norling both opine that it will only provide 5,000 square metres of floorspace that will cater to the demand.
  2. [185]
    To better appreciate the validity of this assumption, it assists to have a greater understanding of the nature of the new Yamanto Shopping Centre approval.
  3. [186]
    As I have mentioned in paragraph [6] above, on 13 October 2022, the Council gave the new Yamanto Shopping Centre approval.  It is a development permit that authorises a material change of use for a further Shopping Centre.  The authorised material change of use is described in the decision notice as a material change of use for:

“Shopping Centre (Shops and Bulky Goods Sales but limited to premises not less than 300m2 per tenancy used for the display and sale of large bulky goods, or large stocks of similar goods or related goods (in the interests of clarity, and for emphasis, this definition does not extend to, or include, a supermarket, department store, discount department store in the form of discount department stores currently conducted by Target, Kmart and Big W), Restaurant, Medical Centre and Office)”.

  1. [187]
    The development permit attaches to land between the Cunningham Highway and Pisasale Drive that is in the Yamanto Primary Business Area of the Yamanto Major Centre Zone.
  2. [188]
    The approved Shopping Centre has a gross floor area of 14,548 square metres, of which 12,360 square metres is at ground level.  Conditions 1 and 2 of the new Yamanto Shopping Centre approval states:

1.

Development Plans

 

The applicant must undertake the development generally in accordance with the approved plans outlined in part 3 of this development permit and as amended in accordance with condition 2(c).

From the commencement of the construction of the development and at all times thereafter.

2.

Particular Use

  1. (a)

The Shopping Centre is required to be primarily for Shops.

From the commencement of the construction of the development and at all times thereafter.

  1. (b)

Any tenancies which are not a Shop, must be used for Bulky Goods Sales as defined in the Planning Scheme, Restaurant, Medical Centre or Office.

From the commencement of the construction of the development and at all times thereafter.

  1. (c)

The applicant must submit, for written approval by the assessment manager, amended plans which identify the proposed mix of tenancies with labels such as Shop, Bulky Goods Sales, Medical Centre, Restaurant, or Office.  Any colouring or shading on the proposed plans are to include a legend which explains their intended meaning.

Prior to the lodgement of the first application for operational works.

  1. [189]
    There is no evidence before me about the mix of tenancies proposed in the new Yamanto Shopping Centre. 
  2. [190]
    Yamanto Holdings Pty Ltd and Kelly Consolidated Pty Ltd take differing positions about the retail offer that is authorised by the new Yamanto Shopping Centre approval. 
  3. [191]
    Yamanto Holdings Pty Ltd says that the exact mix of the subsidiary tenancies falling into the categories of bulky goods sales, restaurant, medical centre and office is yet to be determined.  Despite that, they need to be subsidiary to the use of shop.  Yamanto Holdings Pty Ltd invites me to accept the evidence of Mr Dimasi about its relevance to an assessment of need for the proposed development.
  1. [192]
    Mr Dimasi says that it is possible that none of the floorspace within the new Yamanto Shopping Centre approval will be for uses that involve bulky goods sales.  He says that it is highly likely that were the new Yamanto Shopping Centre to proceed, a significant proportion of the floorspace will not be bulky goods sales.  In his view, this tends to make a mockery of the supply and demand analysis for bulky goods sales and is why the conclusions about the real level of need and demand for the proposed development should be regarded as conservative.  With those caveats in mind, Mr Dimasi assumes that the new Yamanto Shopping Centre approval will be completed by 2026 and will supply 5,000 square metres of bulky goods sales retail premises.  He also says that, from his perspective, the quantum of bulky goods sales floorspace provided by the new Yamanto Shopping Centre approval has no bearing on the need for the proposed development.  He considers that there is ample demand for both.
  2. [193]
    Kelly Consolidated Pty Ltd says that condition 2(a) does not limit the extent of “bulky goods sales” within the approved development.  It says that it could develop its land wholly for “bulky goods sales”.  As an alternative to its primary position, and in any event, Kelly Consolidated Pty Ltd says that condition 2(a) does not necessarily limit the extent of “bulky goods sales” within the approved development to 5,000 square metres as assumed by Mr Norling and Mr Dimasi.
  1. [194]
    In support of its primary position, Kelly Consolidated Pty Ltd relies on the matters referred to in paragraphs [35] to [41] above to contend that “Bulky goods sales” fits within the meaning of “shop”, effectively being a type thereof.  This is because:
    1. there is nothing in the Planning Scheme that indicates that an ordinary meaning of a shop should not apply;
    2. a plain reading of the Planning Scheme does not support the exclusion of bulky goods sales from a shop;
    3. if the intention was to exclude bulky goods sales from being a type of shop that could have been achieved easily through appropriate drafting;
    4. the grouping of “shop” and “bulky goods sales” in the “Business Use” use class reflects that they are both uses for business purposes: it does not support the exclusion of bulky goods sales from being a shop; and
    5. appellate authority, such as AAD Design Pty Ltd v Brisbane City Council,[96] supports the proposition that a use may meet more than one planning scheme definition in certain situations.
  2. [195]
    Kelly Consolidated Pty Ltd submits that, as such, condition 2 of the new Yamanto Shopping Centre approval does not restrict the extent of bulky goods sales that it may develop on its site.
  3. [196]
    Alternatively, Kelly Consolidated Pty Ltd submits that condition 2 does not restrict the extent of bulky goods sales within the approved development to only 5,000 square metres.  It says that “primarily” means “1. in the first place; chiefly; principally” and “mainly” does not mean “exclusively”.[97]
  4. [197]
    In sofar as “primarily” is a contentious term, Kelly Consolidated Pty Ltd says that the decision of the Supreme Court of New South Wales in Sonter v Commissioner of Land Tax (NSW),[98] provides useful guidance.  In that case, in the context of the imposition of land tax, Rath J observed:[99]

“The word “primarily”, as applied to the case, means that those uses are to be weighed and evaluated. There is no particular touchstone that can be used; all circumstances bearing on the degree, extent and intensity of the uses as land uses are to be considered. The question is one of fact and degree, and one to be approached on a broad, common-sense basis.”

  1. [198]
    Kelly Consolidated Pty Ltd further submits that “primarily” and “mainly” are synonymous and, as such, the Court of Appeal decision in Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd[100] provides guidance.  In that case, the meaning of “mainly” was considered in the context of whether development was an “Hotel” or “Short Term Accommodation” for the purposes of the Brisbane City Plan 2000.  Morrison JA, with whom M McMurdo P and Douglas J agreed, observed:[101]

“[69] The submitters contended before this court that the proposal came under the definition of “Short Term Accommodation”, and should be approached that way, rather than as an “Hotel”. This would be so if the “hotel … entails mainly accommodation”. The contention was that one should decide the question whether the hotel “entails mainly accommodation” by referring to the GFA attributed to each use. Thus, it was said: accommodation of 132 rooms had a GFA of 5900 m2; reception, dining area, lounge bar lobby and administration, a GFA of 700 m2; and the conference rooms, meeting rooms and gymnasium, a GFA of 690 m2. That meant 5900 m2 to accommodation and 1390 m2 to other uses, which, the submitters contended, meant the hotel entailed mainly accommodation.

[70] There are a number of reasons why I do not accept that to be the correct approach. First, there is nothing in the definition of “Short Term Accommodation” which points to the use of GFA as the determinant. Nor is there any similar use of the phrase “entails mainly …” elsewhere in the City Plan which might suggest so. Second, that approach would lead to arbitrary results. For example, if the GFA for accommodation was 1 m2 more than that for other hotel type uses, that approach would have the same result as if accommodation GFA vastly exceeded other uses.

[71] Third, that approach ignores the intensity of the accommodation use. An hotel with rooms of a particular size will accommodate a number of persons in its rooms. The same hotel but with rooms half the size will accommodate double the number, because there are more rooms, even though the GFA for accommodation is the same. Fourth, that approach also ignores the difference in intensity of use as between accommodation and non-accommodation. An area used for a function room, bar or restaurant may attract far more patrons on a regular basis than were accommodated in the rooms. Why then would such a development sensibly be said to be one that “entails mainly accommodation”?

[72] That is the case here. The evidence suggested, and the submitters’ case accepted, that the existing function/restaurant facility was capable of taking 400 people at a time. If that occurred it is more than likely to exceed the number of persons staying at any time in the 132 rooms. There is no suggestion that the proposed development would decrease that level of use; in fact the contrary seems to be the case. From the point of view of intensity of use, then, it would be accurate to say that such a facility did not entail mainly accommodation.”

(footnote omitted)

  1. [199]
    There is considerable force to the submissions made by Kelly Consolidated Pty Ltd. 
  2. [200]
    The question of whether a particular mix of tenancies complies with condition 2(a) is a question of fact that calls for an evaluative judgment.  The composite development, with its component parts, are to be weighed and evaluated.  There is no one touchstone that must be used in the evaluation.  All circumstances bearing on the degree, extent and intensity of the tenancies that comprise the composite shopping centre land use are to be considered.  A range of considerations may be useful in ultimately deciding the question.  Relevant considerations may, but need not necessarily, include metrics such as the proportion of tenancies used for shops as compared to the total number of tenancies for the shopping centre, the proportion of gross floor area used for shops as compared to the total gross floor area of the shopping centre, the intensity of use associated with various shop and non-shop tenancies and the impacts associated with that intensity, and the operating hours of various shop and non-shop tenancies.  The question is one of fact and degree.  It is to be approached on a broad, common-sense basis having regard to the tenancy mix proposed.
  3. [201]
    Ultimately, it is neither necessary nor appropriate for me to determine the extent of gross floor area of the new Yamanto Shopping Centre that could lawfully involve a bulky goods sales use as part of this appeal.  It is sufficient to observe that there is nothing in the definition of “Shopping Centre” or “Shop” or condition 2 that calls for the use of floor area as the determinant. 
  4. [202]
    As such, I am not persuaded that Mr Norling and Mr Dimasi’s assumption that the new Yamanto Shopping Centre approval will only provide 5,000 square metres of bulky goods sales retail uses is appropriate. 

Is there a demonstrated need for the proposed development? 

  1. [203]
    Mr Dimasi opines that his analysis of demand and supply shows that there is a high level of need for the proposed development, which he says is increasing substantially each year.
  2. [204]
    Mr Norling says that there is a modest level of community, economic and planning need for the proposed development currently, and that the need increases to a moderate need by 2026.  Mr Norling’s opinion is premised on his analysis of demand and supply, which he says demonstrates a shortfall in the provision of bulky goods sales uses in each of the local area, the Study Area and Ipswich City.  In his view, as demand continues to grow, the new Yamanto Shopping Centre approval will provide a slight increase in supply, being in the order of 5,000 square metres, and the shortfall will increase over time.
  3. [205]
    According to Mr Duane, there is insufficient demand to support both the proposed development and the new Yamanto Shopping Centre approval by 2026 or beyond.  Mr Duane opines that there is not a need for both developments.  He says that Yamanto not being centrally located to the Ipswich population informs why Yamanto cannot sustain a further 30,000 square metres of either bulky goods sales uses or large format retail uses in the next five years.  Mr Duane considers that the absence of tenants expressing interest in locating in the proposed development supports his views in that respect.
  4. [206]
    There are two matters that are fundamental to the opinions of Mr Dimasi and Mr Norling about the need for the proposed development, namely:
    1. their respective opinions about the extent of the demand for large format retail that is comprised of demand for bulky goods sales uses; and
    2. their assumption that the new Yamanto Shopping Centre approval permits a use that will supply no more than 5,000 square metres of uses that will cater to the demand that is sought to be addressed by the proposed development.
  5. [207]
    For the reasons already provided, I am not persuaded to accept the position adopted by Mr Dimasi and Mr Norling about either of these matters.  As such, I do not accept the opinions of Mr Dimasi and Mr Norling about the need for the proposed development. 

What is the potential impact of the proposed development?

  1. [208]
    There is no suggestion that the proposed development would impact on any centre in the centres’ hierarchy other than the Yamanto Major Centre.  However, it may have consequences for the implementation of the new Yamanto Shopping Centre approval.  A relevant consideration in the determination of this appeal is whether implementation of the new Yamanto Shopping Centre approval may be prejudiced or made more difficult.[102] 
  2. [209]
    Mr Dimasi and Mr Norling opine that the proposed development would not compromise or jeopardise the Yamanto Major Centre and other higher order centres or compromise or undermine the centres hierarchy.  Their view that impacts on existing and approved facilities will not be significant is underpinned by their opinions about the level of undersupply, future strong population growth and the fact that the commencement of the use is proposed to be delayed until 2026.
  3. [210]
    Mr Duane opines that there is insufficient demand to support both the new Yamanto Shopping Centre approval and the proposed development.  He says that the proposed development may take away the opportunity to develop uses on land in the Yamanto Major Centre. 
  4. [211]
    I do not accept the opinions of Mr Dimasi and Mr Norling.  Like their opinions about need, their opinions with respect to impact are underpinned by:
    1. their respective opinions about the extent of the demand for large format retail that is comprised of demand for bulky goods sales uses; and
    1. their assumption that the new Yamanto Shopping Centre approval permits a use that will supply no more than 5,000 square metres of uses that will cater to the demand that is sought to be addressed by the proposed development.
  1. [212]
    For the reasons already provided, I am not persuaded to accept the position adopted by Mr Dimasi and Mr Norling about either of these matters.  As such, I do not accept the opinions of Mr Dimasi and Mr Norling about the absence of adverse impact on the new Yamanto Shopping Centre approval.  I prefer the evidence of Mr Duane on this issue.  He provides a cogent explanation for his opinion.

Conclusion regarding the need for, and economic impact occasioned by, the proposed development

  1. [213]
    Overall, the evidence is sufficient to persuade me that, at present, the local area in which the subject land sits is not well-served with facilities providing large format retail.  There is an under-provision of large format retail in the area.  I am also prepared to assume that there is an under-provision of bulky goods sales uses.  Presently, residents of the local area must travel to satisfy their needs in that regard.  That is relevant, but its significance is diminished in this case because of the nature of the proposed development.  The proposed development does not involve a use that offers the daily essentials of life, such as groceries.  Rather, it is a form of retail facility that is accessed far less frequently, such that the relative inconvenience of travel to obtain choice and competition is less than that associated with accessing a supermarket or a shop selling the daily essential of life.[103]
  1. [214]
    I am prepared to assume that the proposed development would provide social and economic community benefits associated with the provision of additional choice of facilities, the provision of local employment opportunities, the retention of spending in the Yamanto area, decreased leakage of bulky goods spending from the community, increased convenience and amenity for large format retail shopping, and the diversification of the economic base of the Yamanto area.  These matters are relevant in assessing need.  That said, their significance is of lesser weight in this case because those types of social and economic community benefits are, in any event, assured by the new Yamanto Shopping Centre approval.
  1. [215]
    Overall, I am satisfied that the community’s wellbeing would be enhanced by the provision of a facility that accommodates retailers that provide large format retail.  However, given the recent trends with respect to large format retailing and homemaker centres, and their popularity with the public, I am not persuaded that the community’s well-being will be materially enhanced by the proposed development.  It does not deliver the type of retailing that is apparently sought by the public.  The dearth of evidence about retailers expressing interest in locating in the proposed development only serves to elevate my concerns in that regard.
  2. [216]
    Further, and in any event, of significance in the determination of this appeal is that the scale of the retail facility required to address the demand is unclear. 
  3. [217]
    I am not satisfied that there is sufficient latent unsatisfied demand to ensure the success of both the proposed development and the new Yamanto Shopping Centre approval.  Having regard to the evidence, it seems to me that, even if the proposed development did not commence until 2026, there is an appreciable risk that if the two centres were both to proceed, each would perform sub-optimally.  This is not in the interest of the public.  There is also a risk that the situation will further deteriorate over time as the Ripley Valley Town Centre develops, given Mr Dimasi’s assumed catchment includes population from that area.
  4. [218]
    My concerns about the absence of sufficient need are not assuaged by the imposition of a condition that delays the commencement of the proposed development until 2026, or by the predictions about significant population growth in the future.  The observations of His Honour Judge Rackemann in Family Assets Pty Ltd v Gold Coast City Council & Anor[104] are apposite in this regard.  His Honour observed:[105]

“[38] As was submitted for the respondent, the grant of inappropriately premature approvals can have implications and create uncertainties. One cannot say that all things will remain unaltered or that assumptions made at this stage will necessarily be borne out. Circumstances can change. Development intentions and proposals can alter over time by reason of, for example, changes of ownership, potential key tenants or other circumstances. Uncertainties can subsequently arise as to whether a proposal, approved years in advance of an intended opening, will proceed or proceed in its approved form. Other changes can also occur in relation to population growth and distribution and market needs and trends, to name but a few variables. These can reflect on the appropriateness of a development prematurely approved years earlier. Approvals, although prematurely given and not yet acted upon, are prone to weigh on the planning authority, in considering the appropriate planning strategy to adopt as part of a planning scheme review and in considering other applications on the subject site or on other sites. They can become a practical impediment or at least a hurdle to competing proposals which might otherwise have been brought forward.

  1. [219]
    In addition to those variables identified by His Honour Judge Rackemann, the future need for the proposed development may also be adversely affected by changes in the extent of household budget available for spending on the types of discretionary purchases that are typically offered by large format retailers.
  2. [220]
    For the reasons provided above, Yamanto Holdings Pty Ltd has not satisfied me to the requisite standard that there is a need for the proposed development, either now or into the foreseeable future. 

Is the proposed development consistent with the specific outcome for the Urban Areas as a whole in s 4.3.3(1)(a)(iii)?

  1. [221]
    As I have identified in paragraph [70] above, Kelly Consolidated Pty Ltd alleges that the proposed development is inconsistent with the specific outcome in s 4.3.3(1)(a)(iii) of the Planning Scheme, which provides:

“A network of centres is established which—

…

  1. 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.”
  1. [222]
    Kelly Consolidated Pty Ltd submits that the proposed development is an out of centre development that is not a suitable use in the Local Business and Industry Zone.  For that reason, Kelly Consolidated Pty Ltd submits that the proposed development does not comply with the specific outcome in s 4.3.3(1)(a)(iii) of the Planning Scheme.
  2. [223]
    The view advanced by Kelly Consolidated Pty Ltd is too simplistic.  I have set out my findings about the centres hierarchy and the Local Business and Industry Zone in paragraphs [63] to [107] above.
  3. [224]
    Considering my findings about the difficulties with the evidence of the economics experts, I am not persuaded that the proposed development is of a scale that will support the intended business functions of the Yamanto Major Centre.  However, it does not necessarily follow that the proposed development is inconsistent with the specific outcome in s 4.3.3(1)(a)(iii) of the Planning Scheme.  This is because the specific outcome in s 4.3.3(1)(a)(iii) of the Planning Scheme is a broadly expressed planning goal relating to a network of centres for the whole of the Urban Area.  As such, I do not consider the failure to demonstrate advancement of the planning outcome to be a matter that is determinative in this case.

Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(c)?

  1. [225]
    Kelly Consolidated Pty Ltd alleges that the proposed development is inconsistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(c).  As I have identified in paragraph [71] above, that overall outcome relates to the land use mix sought for the Local Business and Industry Zone.  It states:

“Uses and works do not compromise or jeopardise the intended retail and service functions of the City Centre and designated Major or Neighbourhood Centres.”

  1. [226]
    Having regard to my findings above with respect to need and impact, Yamanto Holdings Pty Ltd has not persuaded me that the proposed development would not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre.

Is the proposed development consistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(e)?

  1. [227]
    Kelly Consolidated Pty Ltd alleges that the proposed development is inconsistent with the overall outcome for the Local Business and Industry Zone in s 4.11.2(2)(e).  As I have identified in paragraph [71] above, that overall outcome relates to the land use mix sought for the Local Business and Industry Zone.  It states:

“Uses and works cater to the needs of the local community.”

  1. [228]
    Kelly Consolidated Pty Ltd submits that the proposed development will serve a wider area than the “local community” and so does not comply with s 4.11.2(2)(e) of the Planning Scheme.
  2. [229]
    The Court of Appeal considered the meaning of “local community” and “local residents”, for the purpose of the planning scheme for Cairns, in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors.[106]  Brown JA, with whom the other members of the Court agreed, stated:[107]

“[72] The resolution of this question depends on the statutory construction of “local” when used in the LMDR Zone Code in relation to “local residents” and “local community.” Either phrase is a term capable of broad meaning. As was recognised by the primary judge and also in argument by the parties, little assistance is to be derived from the dictionary and the ordinary meaning of “local.”

[73] The definition of the word “local” relevantly includes “belonging to or existing in a particular place or places” or “peculiar to or only encountered in a particular place or places”. The Macquarie Dictionary defines it to include:

“Relating to or characterised by place, or position in space… relating to a town or a small district rather than the entire state or country”.

[74] “Community” is defined in the Australian Oxford Dictionary as “all the people living in a specific locality.” Similarly, the Macquarie Dictionary defines “community” to include “all the people of a specific locality or country.” “Resident” is similarly non-descript: “someone who resided in a place.”

…

[76] The scope of “local residents” and “local community” is to be determined by looking at the words used in the relevant provision itself as well as the terms of the CP 2016 as a whole to determine what meaning those terms were intended to have in CP 2016.”

(footnotes omitted)

  1. [230]
    The Planning Scheme divides the Local Business and Industry Zone into 16 separate and distinct sub-areas.  It provides different planning visions, needs and priorities for each sub-area.  This provides an indication that the focus area for a “local community” is confined. 
  2. [231]
    Further support for that construction is provided when one reads s 4.11.2(e) in conjunction with s 4.11.2(2)(a)(i) and (b) and the specific outcomes for each of the sub-areas of the Local Business and Industry Zone.  Read together, those provisions reveal a considered planning strategy to identify a specific mix of uses in each sub-area of the Local Business and Industry Zone that would provide “local employment opportunities” and uses and works that cater to the needs of the “local community”.  Consideration of the specific outcomes for each sub-area of the Local Business and Industry Zone also reveals that the planning strategy takes account of the prevailing nature of the area and circumstances of the sub-area and its surrounds, including the nature of the retail centre to which the sub-area is proximate.
  1. [232]
    Kelly Consolidated Pty Ltd accepts that some use from beyond the immediate local area may be expected for a bulky goods sales use.  However, it submits that the scale of the proposed development is such that it would offend this provision given:
    1. although there is a degree of disagreement between the economics experts about the primary trade area that the proposed development will likely serve, all experts agree that the entire trade area extends outside the Ipswich local government area to the south, including a large area named the Boonah sector; and
    2. the proposed development will be the largest bulky goods retail centre in the City of Ipswich and is proposed to have floor space that is significantly larger than the two next largest facilities, being the Harvey Norman centre at Booval and Ipswich Homebase.
  1. [233]
    These submissions are compelling.
  2. [234]
    Further, and in any event, having regard to my findings above with respect to need and impact, and the existence of the new Yamanto Shopping Centre approval, Yamanto Holdings Pty Ltd has not persuaded me that the proposed development would cater to the needs of the local community.  That is because:
    1. I am satisfied that there is a degree of latent unsatisfied demand for large format retail uses;
    2. I am not persuaded that the quantum of the unsatisfied demand is that identified by either Mr Dimasi or Mr Norling; and
    3. I am not persuaded that the demand that exists cannot be adequately met by the new Yamanto Shopping Centre approval such that there remains a demonstrated need for the proposed development. 

Is the proposed development consistent with the specific outcome for Sub Area LB6 – Yamanto in s 4.11.4(6)(g)?  

  1. [235]
    The final assessment benchmark that Kelly Consolidated Pty Ltd says the proposed development is inconsistent with is the specific outcome about the business mix for Sub Area LB6 – Yamanto in s 4.11.4(6)(g).  As I have identified in paragraph [72] above, it states:

“The Sub Area supports the intended business functions of the Yamanto Major Centre by providing for—

  1. bulky goods retailing and retail warehouses …”
  1. [236]
    In supports of its contention, Kelly Consolidated Pty Ltd relies on the failure by Yamanto Holdings Pty Ltd to establish a need for, and an absence of adverse impact occasioned by, the proposed development.
  2. [237]
    In addition, Kelly Consolidated Pty Ltd relies on the evidence of Mr Mewing, the town planner retained by it.  He opines that the need for bulky goods sales should first be satisfied within the Yamanto Major Centre to ensure that the planning aspirations for that centre are not compromised or jeopardised.  Mr Mewing says that providing an outcome that is in effect competing with the Yamanto Major Centre, or a component of it, does not support the designated centre.
  3. [238]
    Kelly Consolidated Pty Ltd also relies on the fact that the proposed development does not seek to integrate, or even turn its face toward, the Yamanto Major Centre.  Rather, it turns away from the Yamanto Major Centre.  It provides no pedestrian or active transport connections with the Yamanto Major Centre.  It does not propose any shared facilities or parking.  To move between the Yamanto Major Centre and the proposed development would require travel on a major road, namely Warwick Road.  Kelly Consolidated Pty Ltd submits that the disconnect between the proposed development and the Yamanto Major Centre means that they would act as separate, although nearby, nodes.  Customers would often attend one or the other.  Attending both would be inconvenient.  The proposed development would, in effect, create a quasi-second centre just across the road from the first planned centre.
  4. [239]
    These submissions are compelling.
  5. [240]
    Further, and in any event, having regard to my findings in paragraphs [63] to [218] above, Yamanto Holdings Pty Ltd has not satisfied me to the requisite standard that the proposed development complies with this assessment benchmark.

What are the relevant matters relied on by the parties under s 45(5)(b) of the Planning Act 2016?

  1. [241]
    The Council identifies several relevant matters that it says arise for consideration under s 45(5)(b) of the Planning Act 2016 and support approval.  They are framed in the following terms in Exhibit 9.8, the Agreed Issues in Dispute:

“11. Is the proposed development consistent with the following assessment benchmarks in the Scheme:

  1. Strategic Framework Section 1.6(10)(a), (b), (c), (d);
  1. Desired Environmental Outcome 3.1(3)(c);
  1. Performance Indicator 3.2(1)(c);
  1. Overall Outcome 4.3.2(2)(t) for Urban Areas;
  1. Overall Outcomes 4.11.2(2)(a)(i), (a)(iv), (b), (c) and (e) for the Local Business and Industry Zone;
  1. Section 4.11.4(6) for the Local Business and Industry Zone;
  1. Section 4.11.5(2)(b), (3) and Table 4.11.1 for the Local Business and Industry Zone.
  1. Is the land suitably located for the proposed development including its frontage to Warwick Road?
  1. Is there an absence of unacceptable amenity impacts associated with the proposed development?
  1. [242]
    Yamanto Holdings Pty Ltd also relies on several relevant matters that it says arise for consideration under s 45(5)(b) of the Planning Act 2016 and support approval.  They are framed in the following terms in Exhibit 9.8, the Agreed Issues in Dispute:

“14. Whether the proposed development ought be approved because it achieves the planning outcomes sought by the Scheme, found in the following assessment benchmarks:

  1. Strategic Framework Section (10)(b) and (10)(d);
  1. Desired Environmental Outcomes Part 3, Section 3.2(1)(c);
  1. Urban Areas – Local Business and Industry Zone, Part 4, Division 3, Sections 4.3.2(2)(t), 4.3.3(1)(a)(ii);
  1. Urban Areas – Local Business and Industry Zone, Part 4, Division 11, Sections 4.11.2(2)(a)(i), (2)(a)(iv), (2)(a), and (2)(b) – 2(e);
  1. Urban Areas – Local Business and Industry Zone, Part 4, Division 11, Sections 4.11.4(6)(a), (6)(b), (6)(g)(i) and (6)(g)(ii);
  1. Urban Areas – Local Business and Industry Zone, Part 4, Division 11, Sections 4.11.5(2)(b) and Table 4.11.1 (Commercial / Industrial ‘Defined use or use class’).
  1. Whether there is a need for the proposed development.
  1. To the extent there may be any concern as to the need for the development to be approved now (which is denied by the Co-Respondent) whether such concern is sufficient to warrant refusal or whether it is satisfactorily addressed by the Respondent’s proposed condition seeking to restrict the opening of the proposed development until 2026.
  1. Whether the proposed development is appropriate and well-located in town planning terms having regard to the following:
  1. the land is a large site with direct frontage to, and good access from, Warwick Road, identified to be a preferred location for bulky goods retailing;
  1. the type of development proposed is not anticipated to, or required by the Scheme to, be located in the Yamanto Major Centre zone (Primary Business Area) including on land owned by the Appellant;
  1. approval involves no unacceptable adverse amenity impacts or unacceptable town planning consequences;
  1. the proposal properly addresses the proposed transit corridor to the immediate west of the subject land;
  1. the proposal is consistent with and complementary to the land uses along Warwick Road including those directly opposite the subject land;
  1. the proposal is an efficient and logical use of the subject land, facilitated by the earlier approval for reconfiguring a lot and opening a road that includes the subject land and its immediate surrounds; and
  1. existing infrastructure is able to be accessed from and service the proposal.
  1. Whether the proposed development will result in positive social and economic benefits to the local community which support approval, by:
  1. creating employment opportunities both during the construction phase and during the lifetime of the development;
  1. encouraging the retention of spending within the Ipswich Local Government Area;
  1. enhancing the amenities enjoyed by the community by the provision of conveniently located bulky goods retailing; and
  1. the proposed development will provide a significant contribution to public art in accordance with the Implementation Guideline Number 31 – Public Art Provision.
  1. Whether the location of the proposed development is consistent with good planning and the reasonable expectations of the community in circumstances where:
  1. the land is zoned for business and industry uses; and
  1. the proposed use is explicitly anticipated in the Sub Area.”
  1. [243]
    I accept that each of these matters is a relevant matter for s 45(5)(b) of the Planning Act 2016.  The real issue is whether they have been established and support approval of the proposed development.
  2. [244]
    Kelly Consolidated Pty Ltd concedes that, other than those provisions that it puts in issue, the proposed development complies with those provisions of the Planning Scheme referred to in paragraphs 11 and 14 of Exhibit 9.8.
  3. [245]
    Several of these provisions are not directly engaged by a particular development proposal.  Rather, they are statements about:
    1. the policy direction for business and industry uses generally;
    2. performance indicators for the Council to assess whether the desired environmental outcomes that have been set for the entire local government area are being achieved; and
    3. goals for the entire urban area.
  4. [246]
    The other provisions relate to:
    1. the provision of local employment opportunities;
    2. the improvement of diversification of the economic base of the City;
    3. the establishment of uses on fully serviced land;
    4. building height;
    5. streetscape and visual and aesthetic considerations;
    6. nearby residential amenity;
    7. operation of the road network and access; and
    8. sewerage infrastructure.
  5. [247]
    I am prepared to assume that the asserted compliance is established and that these matters provides support for approval of the proposed development.
  6. [248]
    I am also satisfied that there is an absence of unacceptable amenity impacts associated with the proposed development and that this is a matter that provides support for approval of the proposed development.
  7. [249]
    As for paragraph 15 of Exhibit 9.8, having regard to my findings above, Yamanto Holdings Pty Ltd has not satisfied me, to the requisite standard, that there is a need for the proposed development.
  1. [250]
    The substantive issues that remain for consideration call for the following factual determinations:
  1. Is the proposed development appropriate and well-located in town planning terms?
  1. Will the proposed development result in positive social and economic benefits for the local community?
  2. Is the location of the proposed development consistent with good planning and the reasonable expectations of the community?

Is the proposed development appropriate and well-located in town planning terms?

  1. [251]
    Yamanto Holdings Pty Ltd contends that the proposed development is appropriate and well-located in town planning terms.  I have already addressed the substance of the grounds advanced by Yamanto Holdings Pty Ltd to support this contention.  As such, I can be brief in addressing this issue.
  2. [252]
    The economics experts agree that the subject land is eminently suitable, in a locational sense, and has the attributes for a successful bulky goods or large format retail homemaker centre.  The relevant attributes include the subject land’s:
    1. large site area;
    2. exposure to a major road, such as Warwick Road;
    3. ability to deliver a design incorporating tenants that are served by accessible car parking;
    4. ability to incorporate a variety of tenant sizes; and
    5. proximity to the Yamanto Major Centre.
  3. [253]
    In terms of the grounds advanced by Yamanto Holdings Pty Ltd to support this contention, I am satisfied that:
  1. the subject land is a large site with direct frontage to, and good access from, Warwick Road;
  2. the subject land is identified as a preferred location for bulky goods retailing, provided:
  1. it is of a scale that is appropriate for the prevailing nature of the area and the circumstances of the subject land;
  2. it will support the intended business functions of the Yamanto Major Centre;
  1. the Planning Scheme does not require all bulky goods retailing to locate in the Yamanto Major Centre Zone (Primary Business Area);
  2. approval of the proposed development would not result in any unacceptable adverse amenity impacts;
  3. the proposed development properly addresses the proposed transit corridor to the immediate west of the subject land;
  4. given the earlier approval for reconfiguring a lot and opening a road that includes the subject land and its immediate surrounds, the proposed development is an efficient use of the subject land; and
  5. existing infrastructure can be accessed from, and will service, the proposed development.
  1. [254]
    Each of these is a relevant matter that supports approval of the proposed development.
  2. [255]
    However, having regard to my earlier findings, Yamanto Holdings Pty Ltd has not satisfied me to the requisite standard that:
  1. the subject land is a preferred location for the proposed development given the proposed development involves bulky goods retailing that:
  1. is of a scale that is appropriate for the prevailing nature of the area and the circumstances of the subject land; and
  2. will support the intended business functions of the Yamanto Major Centre;
  1. approval of the proposed development would not result in any unacceptable town planning consequences, given it has not demonstrated that the proposed development will not have an adverse impact on new Yamanto Shopping Centre approval; and
  2. the proposed development is consistent with and complementary to the land uses along Warwick Road, particularly those directly opposite the subject land.

Will the proposed development result in positive social and economic benefits for the local community?

  1. [256]
    Yamanto Holdings Pty Ltd contends that the proposed development will result in positive social and economic benefits for the local community.  I have already addressed the substance of the grounds advanced by Yamanto Holdings Pty Ltd to support this contention.  As such, I can be brief in addressing this issue.
  2. [257]
    I am satisfied that, if approved, the proposed development would: 
    1. create employment opportunities during the construction phase and during the lifetime of the proposed development;
    2. encourage the retention of spending within the Ipswich local government area; and
    3. enhance the amenities enjoyed by the community by the provision of conveniently located bulky goods retailing.
  1. [258]
    I am also prepared to assume that the proposed development would provide a significant contribution to public art in accordance with Implementation Guideline Number 31 – Public Art Provision.
  1. [259]
    These are positive social and economic benefits to the local community that lend support to approval.

Is the location of the proposed development consistent with good planning and the reasonable expectations of the community?

  1. [260]
    Yamanto Holdings Pty Ltd contends that the proposed development is consistent with good planning and the reasonable expectations of the community.  It supports its contention on the basis that:
    1. the land is zoned for business and industry uses; and
    2. the proposed use is explicitly anticipated in Sub Area LB6 – Yamanto, being the sub area in which the subject land is located.
  2. [261]
    I have already addressed most of the substance of the submissions advanced by Yamanto Holdings Pty Ltd to support this contention.  As such, I can be brief in addressing this issue.
  3. [262]
    Yamanto Holdings Pty Ltd submits that the proposed development will be in line with community expectations due to its compliance with the Planning Scheme.  It says that community expectations, to be reasonable, need to be informed by the Planning Scheme.  As such, Yamanto Holdings Pty Ltd says that whether the proposed development is consistent with reasonable community expectations depends on the ultimate construction of the planning documents.
  4. [263]
    Otherwise, Yamanto Holdings Pty Ltd says that there were three properly made submissions that responded to the development application.  None were from individual residents of the community.  The submissions raised concerns that:
    1. there would be prejudice to the Yamanto Major Centre and the centres hierarchy;
    2. land in the Local Business and Industry Zone would be eroded;
    3. there was an absence of need;
    4. there would be unacceptable traffic impacts; and
    5. there would be prejudice to individual operators located in the Yamanto Major Centre.
  5. [264]
    The Planning Scheme is not concerned with preventing competition between developers or traders or ensuring an absence of any prejudice to individual commercial operators located in the Major Centre Zone.  Rather, it seeks to ensure that uses do not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre.
  6. [265]
    Yamanto Holdings Pty Ltd submits that an expectation that prejudice to existing operators will be avoided is only reasonable insofar as that prejudice compromises or jeopardises the planned functions of the centre within which the operator is located.  It says that the evidence before the Court does not establish such prejudice.
  7. [266]
    In so framing the issue, Yamanto Holdings Pty Ltd seeks to reverse the onus.  It is for Yamanto Holdings Pty Ltd to establish that the proposed development will not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre.  It has not done so.
  8. [267]
    Having regard to all my findings above, Yamanto Holdings Pty Ltd has not satisfied me, to the requisite standard, that the proposed development is consistent with good planning and the reasonable expectations of the community.

Should the development application be approved in the exercise of the planning discretion?

  1. [268]
    The appropriate approach to the exercise of the planning discretion is explained in paragraphs [17] to [21] above. 
  2. [269]
    Yamanto Holdings Pty Ltd’s case in support of approval is founded on two propositions.  Each is fundamental to Yamanto Holdings Pty Ltd’s case for approval.  The first is that the proposed development has the explicit and unconditional support of the Planning Scheme in that it is a use that is contemplated and encouraged on the subject land.  The second is that there is a demonstrated need for the proposed development. 
  3. [270]
    Against that backdrop, the real issue in this case centres on whether it is necessary, or appropriate, to approve the proposed development to address the presently unmet demand (as opposed to need) for bulky goods sales.  The answer to that issue requires the Court to balance numerous considerations including:
    1. the extent of support provided by the Planning Scheme, including by reference to whether the scale of bulky goods retailing to be incorporated in the proposed development is explicitly supported by the Planning Scheme;
    2. the prevailing realities in terms of whether other development in the area has advanced, or will advance, in accordance with the Planning Scheme to meet the demand;
    3. the likelihood that the proposed development could proceed without jeopardising or compromising the Yamanto Major Centre having regard to the new Yamanto Shopping centre approval, which is development that is approved to meet the demand in a manner anticipated in the Planning Scheme; and
    4. other relevant matters that support approval of the proposed development.[108]
  4. [271]
    Here, Yamanto Holdings Pty Ltd has not satisfied me to the requisite standard of either of its fundamental propositions. 
  5. [272]
    Yamanto Holdings Pty Ltd has not persuaded me that the proposed development:
    1. is explicitly supported by the Planning Scheme given the scale of bulky goods retailing that is proposed to be incorporated;
    2. would not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre; and
    3. would support the intended business functions of the Yamanto Major Centre.
  6. [273]
    As I have already identified, there is a planning policy that seeks bulky goods retailing on the subject land provided it will support the intended business function of the Yamanto Major Centre.  There is no suggestion that this policy is unsoundly based or overtaken by events.  It is entitled to be given its full force and effect.
  7. [274]
    This is a compelling reason to allow the appeal and refuse the development application. 
  8. [275]
    Yamanto Holdings Pty Ltd has also not satisfied me, to the requisite standard, that there is a demonstrated need for the proposed development.
  1. [276]
    In the circumstances, I am not persuaded that a combination of partial compliance with the Planning Scheme and the matters supportive of approval provide a sound town planning basis to approve the proposed development.

Conclusion

  1. [277]
    Yamanto Holdings Pty Ltd has not discharged its onus.  The Council’s decision to approve the development application for a material change of use – Business Use (bulky goods sales, cafe, fast food premises, food delivery service, restaurant, shop, snack bar, and/or takeaway food premises) notified in the decision notice dated 13 July 2021 is set aside and replaced with a decision to refuse that part of the development application that sought a development permit for a material change of use.

Footnotes

[1]  For that reason, subsequent references to the development application and the Council’s decision relate only to that part of the development application and decision that relate to the proposed material change of use.

[2] Planning and Environment Court Act 2016 (Qld) s 45.

[3] Planning and Environment Court Act 2016 s 43, subject to ss 46(2) and (5) of the Planning and Environment Court Act 2016.

[4] Planning and Environment Court Act 2016 s 46(2).

[5] Planning and Environment Court Act 2016 s 47.  The type of decision that may be made is also governed by s 60 of the Planning Act 2016.

[6] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 205; Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404, 421; Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396, 419-20. 

[7] Planning and Environment Court Act 2016 s 47; Planning Act 2016 s 60(3).

[8] Planning Act 2016 ss 45 and 59.

[9]  The Planning Scheme is a local categorising instrument: Planning Act 2016 s 43.  Version 03/2017 of the Planning Scheme was the categorising instrument for the development in effect when the development application was properly made on 7 August 2020.  By the end of the hearing, it was still in force and, as such, no party raised an issue under s 45(8) of the Planning Act 2016.

[10]  In the appeal, it is only necessary to carry out an assessment against the assessment benchmarks in the Planning Scheme to the extent that they are put in dispute by the parties.

[11] Planning Regulation 2017 (Qld) s 31 and sch 24.

[12]  [2020] QCA 253; [2021] QPELR 987.

[13]  [2020] QCA 257; [2021] QPELR 1003.

[14]  [2020] QCA 273; [2021] QPELR 1321.

[15]  [2021] QCA 95; [2022] QPELR 309.

[16]  [2019] QPEC 16; [2019] QPELR 793, 803-13 [35]-[86].

[17]  [2019] QPEC 46; [2020] QPELR 328, 333-7 [12]‑[22].

[18]  Practice direction 2 of 2020 [25].

[19]  Exhibit 9.08.

[20]  Exhibit 9.08.

[21]  The changes are identified in Exhibit 1.35 and 1.34.

[22]  Transcript of Proceedings, Kelly Consolidated Pty Ltd v Ipswich City Council & Anor (Planning and Environment Court of Queensland, 2165 of 2021, Kefford DCJ, 30 May 2022) 47.

[23]  See, for example, Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38]-[40].

[24] Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160 and 161; Lizzio v Council of the Municipality of Ryde [1983] HCA 22; (1983) 155 CLR 211, 217; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404, 409; Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 291 [40]; Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52; [2019] QPELR 221, 227-8 [14].

[25] Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244.

[26] Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244.

[27] Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 161.

[28] Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160; Cook v Woollongong City Council (1980) 41 LGRA 154, 159.

[29] Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 290-1 [38] and [39], citing Burdle v Secretary of State [1972] 1 CLR 1207, 1212; [1972] 3 All ER 240, 244 and Fidler v First Secretary of State [2005] 1 P & CR 169, 175.

[30] Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381; AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-12 [37], 13 [44]-[49], and 18-9 [72]-[73].

[31] St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378, 392; Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381.

[32] AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1 and Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 698-700 [52]-[58].  See also Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355, 381-2 [69]-[71]; SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, 149 [20]. 

[33] Macquarie Dictionary Online, 2023, Macquarie Dictionary Publishers, an Imprint of PanMacmillan Australia Pty Ltd, www.macquariedictionary.com.au.

[34]  Kelly Consolidated Pty Ltd addresses each of the Council’s examples in its Supplementary Written Submissions, wherein it applies the generalia specialibus non derogant prinple (i.e., the general term does not detract from the specific) to each of the Council’s examples.  The analysis is compelling.

[35]  See Exhibit 1.34 pp 76 – 85.  These also appear in Exhibit 9.02 pp 6 – 15.

[36]  Transcript of Proceedings, Kelly Consolidated Pty Ltd v Ipswich City Council & Anor (Planning and Environment Court of Queensland, 2165 of 2021, Kefford DCJ, 30 May 2022) 47.

[37]  Written Submissions on behalf of the Co-respondent p 7 [18].

[38]  Written Submissions on behalf of the Co-respondent p 43 [131].

[39] Cascone & Anor v Whittlesea Shire Council (1993) 80 LGERA 367, 381; AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-12 [37], 13 [44]-[49], and 18-9 [72]-[73].

[40]  Planning Scheme s 1.1: Exhibit 2.01 p 10.

[41]  Planning Scheme ss 1.11, 1.12, 1.13 and 1.15: Exhibit 2.01 pp 18-29.  Overlays provide the secondary organisational layer in the Planning Scheme and are based on special attributes of land that need to be protected or that may constrain development.  The overlays are not relevant to the issues in this appeal.

[42]  Exhibit 2.01 pp 1-2.

[43]  Planning Scheme s 1.16: Exhibit 2.01 p 29.

[44]  Planning Scheme ss 1.16 and 2.2(5) Table 4.11.1: Exhibit 2.01 pp 29, 30, 32, 103, 104 and 107.

[45]  Planning Scheme s 4.2.2 and Table 4.11.1: Exhibit 2.01 pp 39, 102, 103, 104 and 107.  A footnote clarifies that the identification of relevant assessment criteria in column 3 is not intended to detract from the need to have regard to the whole Planning Scheme.

[46]  Planning Scheme s 4.3.1: Exhibit 2.01 p 39.

[47]  Planning Scheme s 1.6(11): Exhibit 2.01 pp 11-2.

[48]  Further guidance on what the network of centres is to provide is outlined in the overall outcome in s 4.3.2(2)(t) of the Planning Scheme.

[49]  Planning Scheme ss 4.3.3(1)(a), 4.9.2(2)(a) and (b): Exhibit 2.01 pp 41 and 49. 

[50]  Those services are described as including convenience shopping, and comparison shopping, specialty retail, “traditional” commercial and retail strip shopping, “‘stand alone’; drive to, ‘destination’ retailers, such as hardware stores and video shops, who prefer peripheral locations and often larger sites”, land extensive retailers, specialised retailing, “less intensive retail and commercial uses including showrooms, video outlets, fast foods, hardware and bulky goods retailers”, “higher order comparison shopping specialty stores”, “traditional retail services targeting convenience to district level customer markets”, and “traditional retail services targeting convenience to neighbourhood level customer markets”: Planning Scheme ss 4.3.3(1)(a), 4.9.2(2)(a), (b) and (h), 4.9.4(1)(e) and (f), (2)(e), (3)(e) and (f), (4)(h), (j), (m), (n), (p), and (q), (5)(d) and (h), (6)(e) and (i), and (7)(e), 4.9.5(1) and (2): Exhibit 2.01 pp 41, 49, 50, 56, 57, 58, 59, 68, 69, 70, 71, 72, 73, 74, 75, and 76. 

[51]  Planning Scheme s 4.94(3)(f): Exhibit 2.01 p 59.

[52]  Planning Scheme s 4.9.2(2)(d): Exhibit 2.01 p 49.

[53]  Planning Scheme s 1.6(10)(d): Exhibit 2.01 p 11.

[54]  Planning Scheme s 1.6(10)(a) and (b): Exhibit 2.01 p 11.  As is made clear by s 1.6(10)(c) of the Planning Scheme, business and industry uses are to be capable of being economically serviced with the appropriate level of infrastructure.  There is no dispute that the subject land is suitable in that sense.  Although the Strategic Framework does not have a role in development assessment and does not confer land use rights, it summarises the overall effect of the balance on the Planning Scheme on the nature and location of development in the local government area: Planning Scheme s 1.5: Exhibit 2.01 p 10.  The overall outcome in s 4.3.2(2)(t) of the Planning Scheme confirms that a range of business and industrial uses and other employment opportunities are planned to be provided, including local, mixed business and services trade areas and regionally significant business and industry lands.

[55]  Planning Scheme ss 1.9 and 3.1(3)(c): Exhibit 2.01 pp 15 and 33.  One of the performance indicators for this desired environmental outcome calls one to consider whether development has contributed to economic growth within appropriate locations in the local government area.  See Planning Scheme s 3.2(1)(c).

[56]  Planning Scheme ss 4.3.3(1)(a)(i), (ii) and (iii), 4.9.2(2)(a), (b) and (h), 4.9.4(1)(e) and (f), (2)(e), (3)(e) and (f), (4)(h), (j), (m), (n), (p), and (q), (5)(d) and (h), (6)(e) and (i), and (7)(e), 4.9.5(1) and (2): Exhibit 2.01 pp 41, 49, 50, 56, 57, 58, 59, 68, 69, 70, 71, 72, 73, 74, 75, and 76. 

[57]  Planning Scheme ss 4.3.3(1)(a), 4.9.2(2)(a) and (b): Exhibit 2.01 pp 41 and 49. 

[58]  Planning Scheme ss 4.11.2(2)(a)(i) and (iv), and (b): Exhibit 2.01 p 83.

[59]  Planning Scheme ss 4.11.2(2)(c), (d) and (e): Exhibit 2.01 p 83.

[60]  Planning Scheme ss 4.11.4(6)(a) and (b): Exhibit 2.01 p 91.

[61]  Planning Scheme s 4.11.4(6)(c): Exhibit 2.01 p 91.

[62]  Planning Scheme s 4.11.4(6)(d): Exhibit 2.01 p 92.

[63]  Planning Scheme s 4.11.4(6)(e): Exhibit 2.01 p 92.

[64]  Planning Scheme s 4.11.4(6)(f): Exhibit 2.01 p 92.

[65]  Note 4.11.4L of the Planning Scheme confirms that development of Sub-Area LB6 – Yamanto is to support the role of the Yamanto Major Centre in providing for a range of business and industry uses on fully serviced land which caters to the needs of the local community, provides local employment opportunities and capitalises on the resources/markets of the local area.

[66]  See Planning Scheme ss 4.11.4(1)(d), (2)(e), (3)(f), (4)(f), (5)(f), (6)(g), (7)(d), (8)(e), (9)(g), (10)(e), (11)(d), (12)(d), (13)(d), (14)(e), (15)(e) and (16)(e): Exhibit 2.01 pp 86-100.

[67]  See, for example, Planning Scheme ss 4.11.4(1)(d) and (3)(f): Exhibit 2.01 pp 87 and 89.

[68]  See, for example, Planning Scheme ss 4.11.4(2)(e) and (5)(f): Exhibit 2.01 pp 88 and 91.

[69]  See, for example, Planning Scheme ss 4.11.4(4)(f), (7)(d), (8)(e), (10)(e), (11)(d), (13)(d), and (14)(e): Exhibit 2.01 pp 90, 93, 94, 95, 96, 97, and 98.  In Sub Area LB 11 – Brisbane Road, Ebbw Vale and Sub Area LB13, the business mix is to include “bulky goods sales and retail warehouses”, not “bulky goods retailing”.

[70]  [2003] QPEC 2; [2003] QPELR 414, 417-20 [20]-[30].

[71]  [2003] QPEC 2; [2003] QPELR 414, 418 [21].

[72] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 417-8 [20] citing Watts & Hughes Properties Pty Ltd v Brisbane City Council [1998] QPELR 273, 275 and Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR 126, 131.

[73] Abeleda & Anor v Brisbane City Council & Anor [2022] QCA 168; [2021] QPELR 1003, 1018 [51].

[74] Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168, [30].

[75] Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350, 354 [20].

[76] Isgro v Gold Coast City Council & Anor [2003] QPEC 2; [2003] QPELR 414, 418 [22].

[77] Clarry & Anor v Brisbane City Council & Anor [2024] QCA 39, [53].

[78]  Exhibit 4.01.

[79]  Exhibit 5.02.

[80]  Exhibits 5.01 (with confidential information redacted) and Exhibit 5.04 (within which confidential information is not redacted).

[81]  Exhibit 5.07.

[82]  Exhibit 4.03.

[83]  Exhibit 5.08.

[84]  Exhibit 5.12.

[85]  Exhibit 5.11.

[86]  Exhibit 4.02.

[87]  Exhibit 5.03.

[88]  Exhibit 4.04.

[89]  Exhibit 5.09.

[90]  Exhibits 5.06 and 5.10, which were received subject to the objections recorded in Exhibit 9.13.  The parties submitted that there was no need for a ruling about the objections on the basis that they only informed the weight that should be given to the evidence.  Given the nature of the objections, I find the position perplexing.  There is force to the identified objections.  I have placed no weight on those aspects of the evidence of Ms Leavy to which objection is taken in Exhibit 9.13. 

[91]  See paragraph [26] above.

[92] Planning and Environment Court Act 2016 s 46(3).

[93]  Further, the delay in producing these reasons for judgment is, for the most part, attributable to Yamanto Holdings Pty Ltd’s election to request hearing dates and commence the hearing, even though the expert evidence available at the commencement of the hearing did not address the form of development that the Court would be called on to assess. 

[94]  Exhibit 5.02 p 23 [2.40]. 

[95]  The importance of assumed facts is explained in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 729-33 [59]-[68]. and Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2021] QPEC 33; [2022] QPELR 705, 738- 41 [127]-[130].

[96]  [2012] QCA 44; [2013] 1 Qd R 1.

[97]  Kelly Consolidated Pty Ltd references the online Macquarie Dictionary and online Cambridge Dictionary.

[98]  (1976) 7 ATR 30.

[99] Sonter v Commissioner of Land Tax (NSW) (1976) 7 ATR 30, 35.

[100]  [2014] QCA 147; [2014] QPELR 686.

[101] Zappala Family Co Pty Ltd v Brisbane City Council; Brisbane City Council v Zappala Family Co Pty Ltd [2014] QCA 147; [2014] QPELR 686, 702 [69]–[72].

[102] Gold Coast Carlton Pty Ltd & Anor v Beaudesert Shire Council & Anor [1985] QPLR 343, 349; Wu & Kuo Childcare Pty Ltd v Brisbane City Council & Anor [2022] QPEC 27; [2023] QPELR 1004, 1021 [74].

[103] Harburg Investments Pty Ltd v Brisbane City Council & Anor [2000] QPEC 32; [2000] QPELR 313, 317 [25] and [26]; Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 455 [35]; Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77; [2023] QPELR 398, 419 [90], 422 [107], and 425 [120].

[104]  [2008] QPEC 3; [2008] QPELR 448.

[105] Family Assets Pty Ltd v Gold Coast City Council & Anor [2008] QPEC 3; [2008] QPELR 448, 454 [38].

[106]  [2021] QCA 95; [2022] QPELR 309.

[107] Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 95; [2022] QPELR 309, 336 [72]–[76].

[108]  The relevance of such matters was recognised by this Court in Luke & Ors v Maroochy Shire Council & Anor [2003] QPEC 5; [2003] QPELR 447, 459 [56].

Close

Editorial Notes

  • Published Case Name:

    Kelly Consolidated Pty Ltd v Ipswich City Council & Anor

  • Shortened Case Name:

    Kelly Consolidated Pty Ltd v Ipswich City Council

  • MNC:

    [2024] QPEC 12

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    25 Mar 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AAD Design Pty Ltd v Brisbane City Council[2013] 1 Qd R 1; [2012] QCA 44
10 citations
Jump To
Cite 1 - [2012] QCA 44
Cite 2 - [2012] QCA 44
Cite 3 - [2012] QCA 44
Cite 4 - [2012] QCA 44
Cite 5 - [2012] QCA 44
Cite 6 - [2013] 1 Qd R 1
Cite 7 - [2013] 1 Qd R 1
Cite 8 - [2013] 1 Qd R 1
Cite 9 - [2013] 1 Qd R 1
Cite 10 - [2013] 1 Qd R 1
Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003
3 citations
Jump To
Cite 1 - [2021] QPELR 1003
Cite 2 - [2021] QPELR 1003
Cite 3 - [2021] QPELR 1003
Abeleda v Brisbane City Council(2020) 6 QR 441; [2020] QCA 257
2 citations
Jump To
Cite 1 - [2020] QCA 257
Cite 2 - [2020] QCA 257
Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16
2 citations
Jump To
Cite 1 - [2019] QPEC 16
Cite 2 - [2019] QPEC 16
Ashvan Investments Unit Trust v Brisbane City Council & Anor [2019] QPELR 793
2 citations
Jump To
Cite 1 - [2019] QPELR 793
Cite 2 - [2019] QPELR 793
Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404
2 citations
Jump To
Cite 1 - (1990) 69 LGRA 404
Cite 2 - (1990) 69 LGRA 404
Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253
2 citations
Jump To
Cite 1 - [2020] QCA 253
Cite 2 - [2020] QCA 253
Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987
2 citations
Jump To
Cite 1 - [2021] QPELR 987
Cite 2 - [2021] QPELR 987
Burdle v Secretary of State [1972] 3 All E.R. 240
3 citations
Jump To
Cite 1 - [1972] 3 All E.R. 240
Cite 2 - [1972] 3 All E.R. 240
Cite 3 - [1972] 3 All E.R. 240
Caravan Parks Association of Queensland Limited v Rockhampton Regional Council [2018] QPEC 52
2 citations
Jump To
Cite 1 - [2018] QPEC 52
Cite 2 - [2018] QPEC 52
Caravan Parks Association of Queensland Ltd v Rockhampton Regional Council [2019] QPELR 221
2 citations
Jump To
Cite 1 - [2019] QPELR 221
Cite 2 - [2019] QPELR 221
Cascone v Whittlesea Shire Council (1993) 80 LGERA 367
4 citations
Jump To
Cite 1 - (1993) 80 LGERA 367
Cite 2 - (1993) 80 LGERA 367
Cite 3 - (1993) 80 LGERA 367
Cite 4 - (1993) 80 LGERA 367
Clarry v Brisbane City Council [2024] QCA 39
2 citations
Jump To
Cite 1 - [2024] QCA 39
Cite 2 - [2024] QCA 39
Cook v Woollongong City Council (1980) 41 LGRA 154
1 citation
Jump To
Cite 1 - (1980) 41 LGRA 154
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
1 citation
Jump To
Cite 1 - (1984) QPLR 126
Family Assets Pty Ltd v Gold Coast City Council [2008] QPEC 3
3 citations
Jump To
Cite 1 - [2008] QPEC 3
Cite 2 - [2008] QPEC 3
Cite 3 - [2008] QPEC 3
Family Assets Pty Ltd v Gold Coast City Council [2008] QPELR 448
3 citations
Jump To
Cite 1 - [2008] QPELR 448
Cite 2 - [2008] QPELR 448
Cite 3 - [2008] QPELR 448
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
4 citations
Jump To
Cite 1 - (1975) 32 LGRA 157
Cite 2 - (1975) 32 LGRA 157
Cite 3 - (1975) 32 LGRA 157
Cite 4 - (1975) 32 LGRA 157
Gold Coast Carlton Pty Ltd v Beaudesert Shire Council [1985] QPLR 343
2 citations
Jump To
Cite 1 - [1985] QPLR 343
Cite 2 - [1985] QPLR 343
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council [2021] QPEC 33
2 citations
Jump To
Cite 1 - [2021] QPEC 33
Cite 2 - [2021] QPEC 33
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council & Ors [2022] QPELR 705
2 citations
Jump To
Cite 1 - [2022] QPELR 705
Cite 2 - [2022] QPELR 705
Harburg Investments Pty Ltd v Brisbane City Council [2000] QPEC 32
2 citations
Jump To
Cite 1 - [2000] QPEC 32
Cite 2 - [2000] QPEC 32
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
2 citations
Jump To
Cite 1 - (2000) QPELR 313
Cite 2 - (2000) QPELR 313
Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116
2 citations
Jump To
Cite 1 - [2001] QCA 116
Cite 2 - [2001] QCA 116
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Isgro v Gold Coast City Council [2003] QPEC 2
5 citations
Jump To
Cite 1 - [2003] QPEC 2
Cite 2 - [2003] QPEC 2
Cite 3 - [2003] QPEC 2
Cite 4 - [2003] QPEC 2
Cite 5 - [2003] QPEC 2
Isgro v Gold Coast City Council (2003) QPELR 414
5 citations
Jump To
Cite 1 - (2003) QPELR 414
Cite 2 - (2003) QPELR 414
Cite 3 - (2003) QPELR 414
Cite 4 - (2003) QPELR 414
Cite 5 - (2003) QPELR 414
Knight v F. P. Special Assets Ltd (1992) 174 CLR 178
2 citations
Jump To
Cite 1 - (1992) 174 CLR 178
Cite 2 - (1992) 174 CLR 178
Knight v FP Special Assets Ltd [1992] HCA 28
2 citations
Jump To
Cite 1 - [1992] HCA 28
Cite 2 - [1992] HCA 28
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
2 citations
Jump To
Cite 1 - (1983) 155 CLR 211
Cite 2 - (1983) 155 CLR 211
Luke v Maroochy Shire Council [2003] QPEC 5
3 citations
Jump To
Cite 1 - [2003] QPEC 5
Cite 2 - [2003] QPEC 5
Cite 3 - [2003] QPEC 5
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
3 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
2 citations
Jump To
Cite 1 - (2001) NSWCA 305
Cite 2 - (2001) NSWCA 305
Murphy v Moreton Bay Regional Council [2019] QPEC 46
2 citations
Jump To
Cite 1 - [2019] QPEC 46
Cite 2 - [2019] QPEC 46
Murphy v Moreton Bay Regional Council & Anor [2020] QPELR 328
2 citations
Jump To
Cite 1 - [2020] QPELR 328
Cite 2 - [2020] QPELR 328
Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77
2 citations
Jump To
Cite 1 - [2021] QPEC 77
Cite 2 - [2021] QPEC 77
Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404
2 citations
Jump To
Cite 1 - (1994) 181 CLR 404
Cite 2 - (1994) 181 CLR 404
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
SAS Trustee Corporation v Miles [2018] HCA 55
2 citations
Jump To
Cite 1 - [2018] HCA 55
Cite 2 - [2018] HCA 55
SAS Trustee Corporation v Miles (2018) 265 CLR 137
2 citations
Jump To
Cite 1 - (2018) 265 CLR 137
Cite 2 - (2018) 265 CLR 137
Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54
2 citations
Jump To
Cite 1 - [1994] HCA 54
Cite 2 - [1994] HCA 54
Sonter v Commissioner of Land Tax (NSW) (1976) 7 ATR 30
3 citations
Jump To
Cite 1 - (1976) 7 ATR 30
Cite 2 - (1976) 7 ATR 30
Cite 3 - (1976) 7 ATR 30
St Kilda City Council v Perplat Investments Pty Ltd (1990) 72 LGRA 378
2 citations
Jump To
Cite 1 - (1990) 72 LGRA 378
Cite 2 - (1990) 72 LGRA 378
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Trinity Park Investments Pty Ltd v Cairns Regional Council [2021] QCA 95
4 citations
Jump To
Cite 1 - [2021] QCA 95
Cite 2 - [2021] QCA 95
Cite 3 - [2021] QCA 95
Cite 4 - [2021] QCA 95
Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2022] QPELR 309
4 citations
Jump To
Cite 1 - [2022] QPELR 309
Cite 2 - [2022] QPELR 309
Cite 3 - [2022] QPELR 309
Cite 4 - [2022] QPELR 309
Watts & Hughes Properties Pty Ltd v BCC (1998) QPELR 273
1 citation
Jump To
Cite 1 - (1998) QPELR 273
Weinstock v Beck (2013) 251 CLR 396
2 citations
Jump To
Cite 1 - (2013) 251 CLR 396
Cite 2 - (2013) 251 CLR 396
Weinstock v Beck [2013] HCA 14
2 citations
Jump To
Cite 1 - [2013] HCA 14
Cite 2 - [2013] HCA 14
Wilhelm v Logan City Council [2020] QCA 273
2 citations
Jump To
Cite 1 - [2020] QCA 273
Cite 2 - [2020] QCA 273
Wilhelm v Logan City Council & Ors [2021] QPELR 1321
2 citations
Jump To
Cite 1 - [2021] QPELR 1321
Cite 2 - [2021] QPELR 1321
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
12 citations
Jump To
Cite 1 - [2005] QCA 262
Cite 2 - [2005] QCA 262
Cite 3 - [2005] QCA 262
Cite 4 - [2005] QCA 262
Cite 5 - [2005] QCA 262
Cite 6 - [2005] QCA 262
Cite 7 - [2006] 1 Qd R 273
Cite 8 - [2006] 1 Qd R 273
Cite 9 - [2006] 1 Qd R 273
Cite 10 - [2006] 1 Qd R 273
Cite 11 - [2006] 1 Qd R 273
Cite 12 - [2006] 1 Qd R 273
Wu & Kuo Childcare Pty Ltd v Brisbane City Council [2022] QPEC 27
2 citations
Jump To
Cite 1 - [2022] QPEC 27
Cite 2 - [2022] QPEC 27
Yorkeys Knob BP Pty Ltd v Cairns Regional Council [2022] QCA 168
3 citations
Jump To
Cite 1 - [2022] QCA 168
Cite 2 - [2022] QCA 168
Cite 3 - [2022] QCA 168
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147
4 citations
Jump To
Cite 1 - [2014] QCA 147
Cite 2 - [2014] QCA 147
Cite 3 - [2014] QCA 147
Cite 4 - [2014] QCA 147
Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686
4 citations
Jump To
Cite 1 - [2014] QPELR 686
Cite 2 - [2014] QPELR 686
Cite 3 - [2014] QPELR 686
Cite 4 - [2014] QPELR 686

Cases Citing

Case NameFull CitationFrequency
Nairn v Brisbane City Council [2024] QPEC 462 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.