Bushland Grove Pty Ltd t/a Mount Low Developments v Townsville City Council and Sunland Group Limited [2011] QPEC 84 [2011] QPELR 759

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bushland Grove Pty Ltd t/a Mount Low Developments v Townsville City Council and Sunland Group Limited [2011] QPEC 84 PARTIES: BUSHLAND GROVE PTY LTD T/A MOUNT LOW DEVELOPMENTS (ACN 131 841 953) (Appellant) V TOWNSVILLE CITY COUNCIL (Respondent) and SUNLAND GROUP LIMITED (Co-respondent) FILE NO: 222 OF 2010 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: District Court DELIVERED ON: Thursday 23rd June 2011 DELIVERED AT: Townsville HEARING DATE: 6 June 2011 JUDGE: Baulch SC, DCJ ORDER: 1. That the appeal be allowed. 2. That the Co-Respondent’s application be refused. CATCHWORDS: ENVIRONMENTAL AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS AND PERMITS - GENERAL POWERS – VALIDITY – GENERALLY- where the appellant is the owner of land identified in the respondent’s Town Planning Scheme for the development of a commercial area – where the respondent has approved an application by the co-respondent to develop a supermarket at an alternate location in the near proximity of the identified area – whether the approval by the respondent conflicts with the Town Planning Scheme – whether there are sufficient grounds to approve the proposal not withstanding the conflict -- 1 of 11 -- 2 COUNSEL: C Hughes S.C and T Fantin for the appellant N Kefford for the respondent R Litster S.C and B Job for the co-respondent SOLICITORS: Stuart Watson Lawyers for the appellant Townsville City Council for the respondent Hopgood Ganim Lawyers for the co-respondent [1] The appellant is the owner of land situated at Mount Low in an area identified in the respondent’s Town Planning Scheme for the development of a commercial area. [2] The respondent has approved an Application by the co-respondent to develop a supermarket at an alternate location in the near proximity of the identified commercial area. [3] The approved supermarket will be a 2,800m² full line supermarket and will be located approximately 1.7 kilometres from the identified commercial area. [4] The appellant says that the approval conflicts with the Town Planning Scheme and should not have been allowed because no sufficient planning grounds exit to justify its approval notwithstanding the conflict. The Planning Scheme [5] Extracts of the Planning Scheme which preceded the current Planning Scheme were tendered so that I could understand the history of the site in respect of which the Approval has been granted. [6] Under the previous Planning Scheme, the co-respondent’s site was zoned commercial. The effect of the commercial zoning was that a major shopping development might have been erected on the land subject to clause 7.6.15 of the Scheme (which dealt with the transition from an earlier Planning Scheme to the Scheme that I am referring to). [7] “Major shopping development” was defined to be a development in the form of shopping centre predominantly used for retailing to the public and including an area of a building or structure or part thereof exceeding 6,000m² gross floor area (or such other area as the Governor in Council might from time to time prescribe). There was argument as to whether that zoning was practical under the old Scheme, it being said that the site was not big enough to allow for the development of a shopping centre with an area in excess of 6,000m². 1 1 Mr Vann said that a typical shopping centre had a centre area about one third of the area of the site upon which it was erected and that because of that a 6,000m² development could not be erected on a site -- 2 of 11 -- 3 [8] It does not seem to me to be necessary to dwell on the question whether that zoning was an error as it seems to me that its significance is that it is unlikely that the authors of the current Plan were mistaken when the zoning of that area of land was altered under the new Plan. As was submitted for the appellant, it seems that it can only be sensibly assumed that the author of the Plan made a deliberate decision to identify two areas at Bushland Beach as Convenience Centres where one had previously been the subject of a different zoning. [9] The current Planning Scheme was adopted on 7 October 2003. [10] It begins (after interpretation provisions) by stating desired environmental outcomes and city strategies before moving to Planning Areas and providing performance indicators. Interpretation [11] The interpretative provisions point out that no development is prohibited under the Planning Scheme. The character statements for each Planning Area and a Local Area identify development considered to be consistent with the desired development outcomes for development in those areas. They also identify development considered to be inconsistent with the desired developmental outcomes. Further it was pointed out to me that the interpretative provisions note that footnotes appearing in the Planning Scheme form a non-statutory part of the Planning Scheme. [12] The desired environmental outcomes (DEO’s) and city strategies are set out in Part 2 of the Plan. [13] DEO 2.5 notes that economic development in the city is strong, diversified, supports local government and enhances quality of life. Under that DEO city strategies set out including “establishing and supporting a hierarchy of centres and preventing ribbon development”. [14] DEO 6 reads “the city’s land use patterns create cohesive communities that balance economic, social and environmental considerations” and a strategy noted under that DEO is stated “ensuring orderly and sequential growth defining urban growth boundaries”. [15] The co-respondent’s site is identified as a Convenience Centre in Schedule 3.3 of the Plan. The character statement for the Centre’s Planning Area says that the development of Convenience Centres at these locations is consistent with the desired outcomes for the Centres planning area. with a total area of only 1000m2. He says that typically a supermarket site requires to be about three times the area of the desired shopping area. -- 3 of 11 -- 4 [16] It is said that Convenience Centres provide for the particular needs of a specifically defined community with high levels of local accessibility (my emphasis). They have a maximum 1,000m² GLA (Gross Lettable area) comprised of commercial development and service premises and are designed to be sympathetic to the local environment and residential development in such matters as overall scale building height and boundary treatment and are consistent with the desired development outcomes for a particular community. [17] Part 3.3 of the Plan identifies Convenience Centres at Bushland Beach in a map at page 22 and the co-respondent’s site is one of those so identified. [18] The Centres Planning Area documentation goes on to define larger shopping centres as follows: 1. Neighbourhood Centres The Plan identifies a Neighbourhood Centre at Greenwood, Mount View, Parkside and Kirwan North and says that Neighbourhood Centres provide for everyday local shopping and commercial needs of local residents for its immediate population catchment between 3,500 and 6,000 persons and are readily accessible to pedestrian, cyclists and local residential traffic. They have a maximum 8,000m² GLA comprised of commercial development not exceeding 5,000m² GLA and service premises not exceeding 3,000m² GLA and are designed to be sympathetic to adjoining residential development in such matters as overall scale, building height and boundary treatment. 2. District Centres The Centres Planning Area goes on to say that the identified District Centres are the Upper Ross Shopping Centre and the Woodlands Shopping Centre and that it is not envisaged that the development of additional District Centres within the life of the Planning Scheme should occur. District Centres, it is said, are intended to cater for the needs of the respective residential catchments and cater for the weekly needs of a population of up to 25,000 persons and act as a Neighbourhood Centre for its immediate population catchment. Such a Centre will have a maximum 15,000m² GLA comprised of commercial development not exceeding 10,000m² GLA and service premises not exceeding 5,000m² GLA. They are located on arterial roads to prevent non-local traffic entering residential areas. 3. Sub – Regional Centres The Plan identifies Sub-Regional Centres at Mount Low-Deeragun and Thuringowa City Centre. -- 4 of 11 -- 5 The Plan specifically provides that the establishment of a Sub-Regional Centre in the Mount Low-Deeragun area is intended beyond the life of the Planning Scheme. It is said that the Centre will start as a Neighbourhood Centre, progress towards a District Centre and ultimately develop into a Sub-Regional Centre. The Thuringowa City Centre is intended as the primary focus of the city catering for the needs of locals and visitors. The Centre is completely integrated, directly linked to Riverway and characterised by five sub-areas that compliment each other – the Commercial 1 sub-area; the Commercial 2 sub-area; the Commercial 3 sub-area; the Commercial 4 sub-area; and the Commercial 5 sub-area and those areas are illustrated on a map attached to the Plan. [19] The details that I have mentioned are repeated in a Centres Planning Area Code and Part B of the Performance Criteria includes a statement that the development should not adversely affect the achievement of the Centres hierarchy described in section 3.3.1(e) (the definitions that I have just referred to). [20] Another Planning Scheme document which assumed significance in this case was adopted by the respondent counsel on 2 December 2003 and notified by Public Notice published in the Townville Bulletin on 6 December 2003. It is entitled “Planning Scheme Policy – Urban Growth Boundaries”. [21] As I have said, two areas at Bushland Beach (one being the co-respondent’s site) are identified as Convenience Centres. The co-respondents approved development [22] The co-respondents sought a Preliminary Approval to override the Planning Scheme and a Development Permit – Material Change of Use for a Convenience Centre. The co-respondent proposes to construct a supermarket with a GLA of 2,800m² and specialty retail areas of 262m², 383m² and 815m². The involves a significant increase in the area land which would be occupied by the Centre and would result in a Centre with a GLA almost five times that permitted by the present designation of a Convenience Centre. The Appellant’s case [23] The appellant says that this Approval conflicts with the Planning Scheme and cannot be justified on proper planning grounds. The starting point of the appellant’s case is found in the Planning Scheme Policy adopted by the respondent on 2 December 2003. That Policy attaches a Mount Low-Deeragun Concept Plan which identifies a commercial area at or near the intersection of the Mount Low Parkway and North Shore Drive. [24] The appellant has made an Application for a Preliminary Approval to construct a supermarket based shopping centre near that intersection. That application was made one year before the Co-Respondents application but has proceeded slowly since being made. -- 5 of 11 -- 6 [25] The appellant says that the construction of such a Centre at that location accords with the aims of the Planning Scheme and will contribute to the orderly development of the area. [26] The appellant further says that if that co-respondent’s proposal proceeds, it is likely that the appellant’s proposal will have to be deferred and that such a deferment is not in the interests of the area to be served. The issues on appeal [27] The issues on the appeal are identified in the order which I made on 28 April 2011. [28] As the appeal has proceeded, it seems to me that in reality the serious issues to consider here are: (a) whether or not the co-respondent’s application was one which was in conflict with the respondent’s planning scheme; (b) if yes, whether there existed sufficient planning grounds to approve to allow the appeal. [29] I note that section 4.1.52 of the Integrated Planning Act 1997 requires me to decide the appeal on the basis of the laws and policies applying when the application was made and to proceed to hear the appeal by way of a hearing anew. [30] By s 3.5.14 my decision must not: (a) compromise the achievement of the desired environmental outcomes for the Planning Scheme Area; or (b) conflict with the Planning Scheme, unless there are sufficient grounds to justify the decision despite the conflict. [31] By s 4.1.50 of the Act, it is for the applicant (the Co-Respondent) to establish that the appeal should be dismissed. The views of the local community [32] Two residents of Bushland Beach and the proprietor of the operator of the present IGA Supermarket at Bushland Beach provided statements setting out their views in relation to the application. Their statements were Exhibits 10, 11 and 12 respectively. [33] None were required for cross-examination. [34] Mr Amajit Singh Bhela is the sole director and secretary of Bhela Pty Ltd, which is the operator and lessee of the IGA store on the site of the current approval. He opened the Bushland Beach store in August 2010 and has traded there since that time. He estimates that 95% of his customers are local residents. He keeps his store -- 6 of 11 -- 7 open seven days a week from 6 am until 9 pm. He says that although local residents are very supportive of his store, they comment that the store does not offer the range of items that they require. He says there are lots of young families in the area and says that his store is simply too small to enable him to provide all of the items that young families require, and that means that the young families must do their “big basket” shopping either at Deeragun or at Townsville. [35] He says if he was able to have a larger store he would provide a greater range and depth of products, which would allow residents to do their “big basket” shopping at Bushland Beach. Further, he says that additional speciality stores around him would be very important, as they would help to create a village-type of feeling. He employs 30 staff at the store, all of whom live within five minutes’ driver of the store. Twenty-eight are employed on a casual basis and the remaining two are full- time workers. [36] He anticipates that if the development proceeded he would be employing about 180 staff in the larger Super IGA store and that about 20% of those staff would be full- time workers, as each of the different departments in the store, such as the bakery and the butcher, would require full-time staff. [37] Ben David Pearson and Scott William Padgett are both residents of Bushland Beach. [38] Mr Pearson is the pastor of Northern Beaches Connection, a community Christian group associated with the Queensland Baptist Church. I was informed from the Bar table that the church does not currently have premises at Bushland Beach but meets from time to time in the homes of various residents of the suburb and occasionally in public places in the area. [39] He supports the establishment of a Super IGA on the site of the existing IGA store and says that the nearest full-line supermarket for residents of Bushland Beach is the Woolworths at Woodlands, and that his wife dislikes shopping at that centre. He says that he sees no point in a shopping centre at the location desired by the appellant. He felt the community would benefit from the additional shopping facility proposed by the co-respondent. [40] Scott William Padgett lives at Bushland Beach having moved there from Tasmania about two years ago. He tells me that Bushland Beach is growing faster than he expected and that he currently shops at the local IGA store when he has run out of something at home but does his main grocery shopping elsewhere, mostly at the supermarket at North Shore. He says that he and his wife would prefer to shop at Bushland Beach, and says that the appearance of the shopping centre at Bushland Beach makes it apparent to him that it was built with future expansion in mind. He says that he has been aware for some time of Sunland’s proposal to expand the centre. He says that he and his wife would welcome an expansion to the centre to include a supermarket and additional shops. He feels that the location of Bushland Beach is ideal for such a facility. He also feels that centrally located facilities would encourage a sense of community and provide a focus for the local -- 7 of 11 -- 8 community. He says that he and his wife have been eagerly awaiting the future expansion of the centre for the convenience it will provide. He adds that he feels that the proposed shopping centre at Mount Low Parkway and North Shore Boulevard may be required at some time in the future, but notes that there are currently few people living in the immediate are of that intersection. [41] I conclude from that evidence that there is some support for an expansion of the facilities at Bushland Beach, but note that none of the residents who provided statements have any planning qualifications or experience. The expert evidence [42] I heard evidence from a number of experts and in the main found their evidence helpful. [43] I had some reservations about the evidence of Mr Van in that he was so obviously committed to the cause of those who had retained him. He was quite unable to answer questions directly without adding a rider or qualification to advance the case of the co-respondent. He did this even when the rider or qualification was quite unnecessary to answer the question. [44] I also preferred the evidence of Mr Hornman to that of Mr Holland. Mr Holland spoke very directly but was I thought a little careless in some areas. The evidence that he gave regarding the quote "centroid" in my view demonstrated that the exercise had little to do with establishing a population centre (see transcript 2-55 lines 20-25). Further, his description of an identified person as an "idiot" (page 2- 48) was unhelpful as was his rejection of Mr Hornman's traffic studies as "unnecessary". In my opinion Mr Hornman's traffic studies provided a useful indication of how the traffic arrangements at each of the two centres might work in the scenarios he considered. The view [45] I was taken on an inspection with counsel which I found both interesting and helpful. [46] In my opinion Bushland Beach is an area of high residential amenity adjacent to a north facing beach. In my opinion it is important to preserve that high residential amenity of such areas. One way in which that can be done is by the prevention of unnecessary intrusions of non-essential, non-residential uses. [47] This, would seem to me, to accord with the scheme and in particular 3.5.1(e) of the scheme and where the performance criteria p12 in respect of residential areas. The policy -- 8 of 11 -- 9 [48] A significant amount of time was spent discussing the effect of a policy adopted by the respondent council a short time after the planning scheme was adopted. [49] I was referred to Lamb v The Brisbane City Council (2007) 2 Qd. R. 538 and in particular to paragraphs 12 and 24 of that judgment as indicating the way in which planning scheme policies can work with the planning scheme. It seems to me that that conjoint operation allows the scheme to be supplemented by the existence of the policy without the policy operating in breach of section 2.1.23(4) if it is approached in the way recommended in the judgment in that case. I note that special leave to appeal from that decision was refused by the High Court on 4 October 2007. [50] I take the policy as giving a general indication of the area in which commercial development is anticipated and no more. Conflict with the planning scheme [51] I conclude that the co-respondent's proposal does conflict with the provisions of the respondent's planning scheme for the following reasons: 1. The proposal seeks to use land identified for use as a convenience centre for a higher order use. 2. The proposal seeks to use residential land for commercial purposes. 3. The proposal seeks to increase (by a factor of five) the area restriction for commercial activity permitted by the provisions of the plan. 4. The co-respondent's proposal cannot sensibly be described as being of a "domestic scale". 5. The co-respondent's proposal does not seek to meet only the needs of the immediate residential population (emphasis added). Grounds for approving the project not withstanding the conflict [52] The principal ground relied on at the hearing was need. [53] The experts identified need for a supermarket "in the short term". When giving evidence they specified 2013 or 2014 as the period when the population in an identified trade area including Bushland Beach and significant other residential areas would reach a level at which a full line supermarket could expect to be supported economically in the community. In my opinion that is a rather different thing from establishing need in the sense in which that expression is usually used in planning cases. -- 9 of 11 -- 10 [54] As was pointed out by counsel for the appellant, a need is not the same thing as demand and he reminded me of the qualification expressed by Skoien DCJ in All-a- wah Carapark v Noosa Shire Council (1989) QPELR 155 at 157-158. [55] On consideration of all the material, I am of the view that there is not established a present need for a neighbourhood centre based on a full line supermarket. [56] My reasons for reaching that conclusion are as follows: 1. The population will not be sufficient to support a full line supermarket until at least 2013 - 2014 and may even arise later (see the evidence of Mr Owen). 2. The alleged "need" is currently met (albeit with some inconvenience) by the existing facilities. 3. The public interest in the provision of such a shopping centre inferred from the evidence of the local residents is not evidence of need in the strict sense. 4. The need is not an existing thing but one which it is hoped will develop in time. 5. While a neighbourhood centre of a different sort could perhaps serve the needs of 3,500-6,000 people, the proposal here requires 8,000-10,000 people for continued successful operation and there is a risk that approval of a project of doubtful viability will not serve the long term interests of Bushland Beach or the broader population for the reasons given by Mr Owen. [57] Mr Vann sought to advance other grounds to justify the approval despite the conflict. [58] I do not accept his evidence as to those additional matters justifying the proposal despite the conflict because in part he seems to rely upon the absence of negative amenity considerations as a positive planning ground. Further, it does not seem to me that the scheme has been overtaken by events and in particular overtaken by faster growth in the Bushland Beach area. Further, the council's scheme must be seen as incorporating a deliberate decision to down scale the sort of commercial activity to be permitted in the Bushland Beach suburb. Such a decision is not only consistent with a wish to maintain a higher level of residential amenity in that area but also consistent with a wish evidence to buy the policy that I have referred to that more intense commercial activity should be located outside the Bushland Beach community. [59] I conclude that there is no good reason to allow the development, notwithstanding the conflict. -- 10 of 11 -- 11 [60] In my opinion this decision will have the following benefits for the identified trade area including the Bushland Beach area. 1. It will ensure that the amenity of Bushland Beach is not diminished in any way. 2. It will encourage orderly development in accordance with the provisions of the scheme. 3. It will allow consideration to be given to the development of a centrally located (geographical or population centred) shopping centre as contemplated by the scheme. [61] Accordingly, there will be orders: (a) That the Appeal be allowed (b) That the Co- Respondent’s application be refused -- 11 of 11 --