Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QCA 351 [2008] QPELR 145

SUPREME COURT OF QUEENSLAND CITATION: Coolum Properties P/L v Maroochy SC & Ors [2007] QCA 351 PARTIES: COOLUM PROPERTIES PTY LTD (appellant/applicant) v MAROOCHY SHIRE COUNCIL (respondent/first respondent) THE CHIEF EXECUTIVE OF TRANSPORT under the Transport Infrastructure Act 1994 (Qld) (first co-respondent by election/second respondent) JAMES WILLIAM SUMMERS (second co-respondent by election/third respondent) DONALD CAROLAN and SUSAN CAROLAN (third co-respondent by election/fourth respondents) BRENNAN DON CAROLAN and JENEANE MARIE CAROLAN (fourth co-respondent by election/fifth respondents) PETER MONTGOMERY BROWN (fifth co-respondent by election/sixth respondent) KERRY ANNE GOUDGE (sixth co-respondent by election/seventh respondent) FILE NO/S: Appeal No 3394 of 2007 DC No 84 of 2006 DIVISION: Court of Appeal PROCEEDING: Application for Leave Integrated Planning Act ORIGINATING COURT: Planning & Environment Court at Maroochydore DELIVERED ON: 19 October 2007 DELIVERED AT: Brisbane HEARING DATE: 14 September 2007 JUDGES: Jerrard and Holmes JJA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: Application dismissed with costs CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the applicant applied to the respondent council for a material change of use of land – where the application was refused – where the applicant appealed to the Planning & -- 1 of 7 -- 2 Environment Court against refusal of the development application – where the applicant seeks leave to appeal against the decision of the Planning & Environment Court dismissing that appeal – whether the learned Judge at first instance erred in concluding that the general provisions of the planning scheme prevailed over the specific provisions – whether the learned Judge erred in construction of planning scheme – whether the learned Judge erred in finding conflict with planning scheme – whether the learned Judge erred in having regard to whether need was demonstrated Integrated Planning Act 1997 (Qld), s 3.5.5(2), s 3.5.14(2)(b) COUNSEL: M Hinson SC for the applicant G J Gibson QC, with T Trotter, for the first respondent No appearance for the second, third, fourth, fifth, sixth and seventh respondents SOLICITORS: P&E Law for the applicant Maroochy Shire Council Legal Services for the first respondent No appearance for the second, third, fourth, fifth, sixth and seventh respondents [1] JERRARD JA: In this application, I have read, and agree with, the reasons for judgment and orders proposed by Holmes JA. [2] HOLMES JA: The applicant for leave to appeal made an unsuccessful application to the respondent Maroochy Shire Council for a material change of use of land. Its intended development involved a number of showrooms, the occupant of one of which was to be Bunnings Group Limited. The applicant’s appeal against the refusal of the development application was dismissed, the learned Planning and Environment Court Judge concluding that the proposed development entailed a conflict with the scheme provisions not justified by any planning grounds. [3] The development proposed was on land designated as “urban” on the western outskirts of Coolum Beach. The lot in question occupied most of Precinct 7 of Planning Area 11 under the Maroochy Plan 2000. The development envisaged four showrooms, one of them to house a Bunnings Hardware store, a garden centre and a timber sales yard. There was already a development approval in place for other parts of the land, allowing for a service station, a convenience restaurant, a funeral parlour, a garden centre, five showrooms, a supermarket, car park, and landscaping. Assessment under the Integrated Planning Act [4] The application was impact assessable. Section 3.5.5(2) of the Integrated Planning Act 1997 (Qld) sets out the matters to which regard must be had on such an application: “If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following— (a) the common material; (b) the planning scheme and any other relevant local planning instruments; -- 2 of 7 -- 3 (c) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme— (i) State planning policies, or parts of State planning policies; and (ii) for the planning scheme of a local government in the SEQ region—the SEQ regional plan; (d) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises; (e) if the assessment manager is not a local government—the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application; (f) the matters prescribed under a regulation (to the extent they apply to a particular proposal).” Section 3.5.14(2) provides that the 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 planning grounds to justify the decision despite the conflict”. The planning scheme [5] The Maroochy Plan 2000 is made up of four volumes: Volume 1, giving a general background to the scheme, Volume 2, setting out the Strategic Plan, Volume 3, comprising the statements of desired character and intent for Planning Areas, Precincts and Precinct classes, and Volume 4, consisting of the Planning Scheme codes. Clause 1.5(2) of Volume 1, which deals with land use and development, explains the division of the Shire into Planning Areas and Precincts which are to – “provide detailed guidance on suitable locations for land use and development, based on the intended role and desired character of the locality, the relationship to uses in other localities, the existing and intended provision of infrastructure, and the means and levels of accessibility and movement to, from and within the locality”. The same clause records that – “Through appropriate Strategic Plan, Planning Area, precinct and code provisions, the Planning Scheme recognises and supports: … • the community and tourist roles of the centres at Buderim, Coolum Beach, Marcoola, the rail towns, the Blackall Range, Bli Bli and Kenilworth”. [6] These directions are given in cl 2.3 of Volume 1 for assessment of proposals for impact assessable development: “(4) Proposals for impact assessable development will be assessed against the statements of desired local character (made up of the Location and Role, Vision Statement and Key Character Elements) for the Planning Area and the Statement of Desired Precinct Character for the individual Precinct in which the development site is situated which are set out in Volume 3. (5) Proposals for impact assessable development will also be assessed against the Strategic Plan (Volume 2). The detailed -- 3 of 7 -- 4 local planning provisions in Volume 3, are intended to be based upon and reflective of the general principles in the Strategic Plan. However, it is the Planning Area Provisions in Volume 3 which represent Council’s specific planning intent for the relevant localities. (6) Where there is no direct inconsistency between Volumes 2 and 3, but merely different or additional outcomes or requirements indicated, Volume 3 constitutes the primary basis for assessment, but all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme. If the different statements in Volumes 2 and 3 are inconsistent, statements in Volume 3 prevail over inconsistent statements in Volume 2. This reflects the fact that Volume 2 provisions are either broad strategic statements or statements of general principle, whereas Volume 3 provisions state specific and considered planning intents for identified localities. It is an incorrect use of the Strategic Plan, and an incorrect interpretation of this Planning Scheme, to rely on anything in the Strategic Plan to support or justify as being consistent with the Planning Scheme, an outcome which is contrary to the Planning Area provisions.” The thrust of the last two directions is repeated in the preface to each of Volumes 2 and 3. [7] The land in question here is identified as “Urban” in the Strategic Plan in Volume 2, which means that it is - “… suitable for residential premises of varying densities, but allows, at specific sites, for retail, commercial, community services and general industrial activities required to serve the day-to-day needs of local communities and which are of a scale appropriate to these needs.” One of the objectives of the Strategic Plan is “To Provide for Retail Commercial and Service Industrial Activities Appropriate to Service the Residential Communities without Compromising Residential Amenity”. Clause 3.5.6 emphasises that retail and commercial uses are to be part of the “urban fabric”. It sets out criteria for assessing applications for non-residential uses in urban areas, designed to implement that objective. The first is as follows: “Approval is only likely to be granted to development of retail, commercial and services uses which are to be located on a specific site (in a Centre Precinct or site specifically identified) and which offer a service only to local communities (other than in the Key Regional Centre of Maroochydore) and are consistent with the intent for, and desired character of the Planning Area and Precinct in which it is to be situated. Consideration will be given to the characteristics of the proposed use, including its location and scale, which determine its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity.” -- 4 of 7 -- 5 [8] Clause 3.11 of Volume 3 concerns Planning Area No 11, Coolum Beach. In cl 3.11.1 the location and role of the area are identified. The role of the Planning Area, it is said, is, inter alia, to “provide for Coolum Beach to remain a small scale tourist centre”. The “Vision Statement” in cl 3.11.2(1) expresses the intention that Coolum will “remain a small coastal community focused on its seaside location”; that it will – “continue to develop as an attractive coastal village … [with] a compact village centre [providing] only a limited range of goods and services to meet the immediate needs of residents and visitors to the locality”. The residents of Coolum Beach, the Vision Statement continues in cl 3.11.2(2), are “prepared to forego the provision of higher order and larger scale retail and commercial services in order to maintain local character and identity”. [9] Clause 3.11.3 of Volume 3 deals with “Key Character Elements”. The location of commercial and business activities is described in cl 3.11.3(1)(a), without reference to Precinct 7. That sub-clause concludes: "Within this Planning Area, the scale of retail and commercial activities will be limited to servicing the immediate catchment area of Coolum and will not serve a district or higher order function." Clause 3.11.4 sets out ‘Statements of Desired Precinct Character”. For Precinct 7 showrooms are identified as an appropriate use, provided criteria as to location, site, and design are met. Those criteria are that the buildings be set in well landscaped grounds, that the car parking be obscured from view and (with scant regard for syntax) – “a range of goods and services which does not compete with the range of goods and services available in the Village Centre Precinct. Items for sale in this precinct should be restricted to larger scale items such as bulky goods.” [10] There are two other Precincts in the Planning Area designed for commercial use: Precinct 1, Coolum Beach Village Centre and Precinct 4, Coolum West Local Centre. The Statement of Desired Precinct Character for Coolum Beach Village Centre reiterates the more general statements in cll 3.11.1 and 3.11.2 to the effect that it is to remain a small beachside village providing a range of retail goods and services to meet the everyday needs of residents and visitors. The Coolum West Local Centre consists of a small shopping centre. Proposals adversely affecting the commercial viability of other commercial-type uses in the Village Centre Precinct are not to be entertained in respect of it. The reasons for judgment [11] The learned Judge at first instance began by considering the definitions of “showroom and “shop” in the Maroochy Plan 2000, concluding that, given the manner in which Bunnings’ stores traded and the nature of the merchandise sold, which was not “primarily of a bulky nature”, the proposed Bunnings premises fitted more readily into the definition of “shop” than a “showroom”. The parties did not contend, however, that his view in that regard played any part in his decision to dismiss the appeal before him, and nothing turns on it for the purposes of this appeal. -- 5 of 7 -- 6 [12] His Honour undertook a careful review of the relevant parts of the Maroochy Plan 2000, setting out each of the provisions to which I have referred. He paid particular attention to the intentions of the planning scheme identified in Volume 1, the explanation of the roles played by Planning Areas and Precincts, and the approach to be taken, in assessing development proposals, to resolution of apparent differences in intent and policy between Volumes 2 and 3. His Honour noted the emphasis in the Strategic Plan on the provision of retail and commercial services at a scale appropriate to serving the day to day needs of local communities. Finally, he reviewed the Statement of Desired Character for Planning Area 11 as a whole before turning to the Statements of Intent and Preferred and Acceptable Uses for Precinct 7. [13] The learned Judge observed that the Statements for the planning area as a whole were not absolute: they could not be applied with their apparent rigour to development in Precinct 7. Showrooms were bound to draw from a greater area than Coolum Beach; so were other acceptable uses such as indoor and outdoor recreation and government facilities. But, he went on to say, the Statements of Intent and Preferred and Acceptable Uses for Precinct 7 had nonetheless to be read in the context of the statements of intent for the whole of the planning area. It followed that what was contemplated as an acceptable use with respect to showrooms in Precinct 7 was a smaller scale development than that proposed, particularly having regard to the impact of the Bunnings store. The evidence as to the economics of a Bunnings store was that its trade area would extend a considerable distance beyond Coolum. It was not an appropriate approach to the proposal to focus on Precinct 7 alone and conclude that any sort of showroom development would be acceptable. [14] His Honour summarised: “When the provisions of the scheme, the vision and key character elements of Planning Area 11, the intent and preferred and acceptable uses of Precinct 7, the provisions of the Strategic Plan about land with an urban designation, the provisions in Volume 1 about land use, planning area and precincts, and how they work together, are read broadly in a way which will best achieve the apparent purposes and objectives of the scheme, then there is no direct inconsistency between the general provisions of the strategic plan and provisions for Planning Area 11 and Precinct 7. The major impediment to the proposal the subject of the appeal is conflict with the planning scheme. The conflict lies in the type and intensity of the proposed development in addition to that already approved particularly with the proposed ‘Bunnings’ use.” There was no planning ground shown to overcome that conflict with the planning scheme: the fact that consumer choice would be enlarged was not sufficient to demonstrate need in a planning sense. The applicant’s contentions [15] The applicant contended that the learned Judge at first instance had erred in concluding that the general provisions of the planning scheme, in the Strategic Plan and in the provisions relating to Planning Area 11 and other Precincts within that area, prevailed over the specific provisions relating to Precinct 7. There were three criteria for the establishment of showrooms in Precinct 7; the learned trial Judge had -- 6 of 7 -- 7 effectively, and impermissibly, introduced a fourth. Although the intention was clear that other commercial Precincts, in Coolum Beach Village Centre and Coolum West Local Centre were to remain small scale, it could not be implied that the same was true of Precinct 7. The Planning Scheme did not anywhere impose a size limit on showrooms in Precinct 7, a state of affairs which was to be contrasted with limitations in respect of other precincts; for example, there were specified limits for the floor area of retail showrooms in the Buderim Village Centre. The learned Judge had erred in law in construing the Precinct 7 provisions as referring to showrooms of relatively small scale and had consequently erred further in finding that there was a conflict with the planning scheme. And, the applicant submitted, whether need was demonstrated was an irrelevant consideration in impact assessment under s 3.5.5 of the Integrated Planning Act. Conclusion [16] His Honour’s approach to the construction of the provisions relating to Precinct 7 was entirely unexceptionable. He did not treat the general provisions of the planning scheme as prevailing over the specific provisions; rather he treated the planning scheme provisions as a whole as illuminating the content of the Precinct 7 provisions. There was no direct conflict or inconsistency between the two; that being the case, cl 2.3(6) of Volume 1 required him to approach his task on the basis that conflict with the Planning Scheme was to be avoided by ensuring that “all elements of the policy or intent” in the Strategic Plan (Volume 2) and the statements of intent and desired character and intent for Planning Areas and Precincts (Volume 3) were met. [17] The relevant references in the Strategic Plan have already been set out; they include, in cl 3.5.6, the indication that approval is likely only for retail and commercial uses offering a service only to local communities and the identification of scale as relevant in the preservation of community focus and identity. In similar vein, the Planning Area Vision Statement expresses its intent that commercial activities will be limited to serving the immediate catchment area of Coolum. The Precinct 7 provisions could not be read in isolation from those prescriptions. [18] His Honour had regard to the policy and intent underlying those provisions, as cl 2.3(6) of Volume 1 required, and properly reached the conclusion that the type and intensity of the proposed development conflicted with the planning scheme provisions. That led, pursuant to 3.5.14(2)(b) of the Integrated Planning Act, to the enquiry as to whether there were “sufficient grounds to justify the decision despite the conflict”. In that context, it was entirely relevant to consider the question of need in a planning sense. [19] Because the applicant for leave to appeal cannot demonstrate an error of law, I would dismiss its application with costs. [20] CULLINANE J: I agree with the reasons of Holmes JA in this matter and the orders she proposes. -- 7 of 7 --