Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 13 [2007] QPELR 400

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Coolum Properties Pty Ltd v Maroochy Shire Council and Ors [2007] QPEC 013 PARTIES: COOLUM PROPERTIES PTY LTD Appellant V MAROOCHY SHIRE COUNCIL Respondent THE CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First Co-Respondent by Election JAMES WILLIAM SUMMERS Second Co-Respondent by Election DONALD & SUSAN CAROLAN Third Co-Respondent by Election BRENNAN DON & JENEANE MARIE CAROLAN Fourth Co-Respondent by Election PETER MONTGOMERY BROWN Fifth Co-Respondent by Election KERRY ANNE GOUDGE Sixth Co-Respondent by Election FILE NO/S: No 84 of 2006 No 139 of 2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 7 March 2007 DELIVERED AT: Maroochydore HEARING DATE: 5, 6, 7 and 8 December 2006 -- 1 of 22 -- 2 JUDGE: Dodds DCJ ORDER: Appeal 84 of 2006: Appeal is dismissed Appeal 139 of 2006: Adjourned to a date to be fixed CATCHWORDS: PLANNING – PLANNING LAW – appeal against respondent council’s refusal to grant approval for material change of use for showroom development – whether extent of showroom development conflicted with planning scheme – whether Bunnings store constitutes a showroom. s 3.5.14(2)(a) & (b) Integrated Planning Act 1997 (Qld) Koerner & Ors v Maroochy Shire Council & Ors (2004) QPELR 211 Distinguished ZW Pty Ltd v Hughes and Partners Pty Ltd (1992) 1 Qd R 352 Followed Luke v Maroochy Shire Council and Anor (2003) QPELR 447 Followed Degee and Anor v Brisbane City Council (1988) QPELR 287 Followed Intrafield Pty Ltd v Redlands Shire Council (2001) QCA 116 Followed Skateway Pty Ltd v Brisbane City Council & Anor (1980) QPLR 249 Followed COUNSEL: Mr M Hinson SC for the appellant Mr G Gibson QC and Mr T Trotter for the respondent SOLICITORS: P&E Law for the appellant Maroochy Shire Council Legal Services for the respondent FURTHER APPEARANCES: Mr J Summers in Person Mr D Carolan in Person Mrs S Carolan in Person Mr P Brown in Person [1] These two appeals were heard together. They have their origin in decisions by the respondent regarding a 6.828 hectare area of land described as lot 2 on SP 161821 (the land) situated in Precinct 7 of Planning Area 11, Coolum Beach, in the -- 2 of 22 -- 3 respondent’s planning scheme (MP2000). Planning Area 11 is designated urban in the Strategic Plan part of MP2000. [2] Planning Area 11 consists of the seaside township of Coolum Beach and land immediately to the north and south of the township catering for permanent and tourist population. It consists principally of detached dwellings and accommodation units together with a “village centre” Precinct 1 near the beachfront and a “local centre” Precinct 4 at its western edge which is essentially a small convenience type of shopping area together with some commercial and light industrial uses. Precinct 7 is also at its western edge. The Land [3] The land, which occupies most of Precinct 7, comprises part of the western perimeter of the Planning Area. It is roughly rectangular in shape but wider at its southern end. Its long axis for present purposes may be described as north-south. Its western border is the Sunshine Motorway. Its eastern border is Barns Lane which presently terminates at its northern end against national park. It is bordered on the south by Yandina-Coolum Road. To the north and north-east of the land is national park. Coolum State School is across Barns Lane from the land. The land is flat, low lying and essentially featureless. Appeal 139 of 2006 This appeal is against the respondent’s decision to condition its approval of an application made on or about 25 November 2005 for a minor change to a development approval. The approval for which the change was sought flowed from this Court’s dismissal on 12 September 2003 of submitter appeals against the respondent’s approval of a development application for a part of the land, Koerner & Ors v Maroochy Shire Council & Ors (2004) QPELR 211 (the Koerner appeal). The approval was inter alia for development permits for a material change of use of premises (showrooms, service station, convenience restaurant, garden centre and shopping complex – supermarket), for an environmentally relevant activity (number 11 – petroleum product storing), for funeral parlour and special-use crematorium and for an environmentally relevant activity (number 14 – crematorium) subject to conditions which were annexed to the -- 3 of 22 -- 4 Court’s orders. The conditions included plans and required development generally to be in accordance with the plans. These showed the convenience restaurant as a stand- alone facility separate from the service station building. They also located the main access into the proposed development from Barns Lane. [4] The application for a minor change sought to relocate the convenience restaurant into the service station building. Plans lodged with the application showed the main access moved further to the north along Barns Lane, said to be necessary to accommodate drainage works required by Condition 5 of the 2003 approval. The condition in issue which the respondent attached to approval of the minor change required the main access to be relocated back to its position indicated on the plans in the 2003 appeal “so that its alignment is compatible with a future dual-lane roundabout planned by council at the intersection of the development access driveway with Barns Lane and a future connection road adjacent to the northern boundary of the Coolum State School. All parking layouts must be modified accordingly”. [5] During the hearing it emerged that the issue would be the subject of further investigation by the respondent and consequently may evaporate. It may presently be left in limbo. Appeal 84 of 2006 [6] On or about 24 May 2005 the appellant lodged an application for a material change of use (showrooms) over part of the land which had not been the subject of the 2003 approvals. Plans accompanying the application showed the main access to the land from Barns Lane in the new location referred to above. The respondent refused the application. The refusal is the subject of this appeal. [7] As mentioned above, the development approved consequent upon the Koerner appeal was to be generally in accordance with approved plans. At the southern part of the land was a service station gross floor area (GFA) 300m², a stand alone convenience restaurant GFA 300m², a garden centre GFA 750m², plus a shaded growing area GFA 1250m², three showrooms each GFA 600m², one showroom GFA 800m², one showroom indicated to be a hardware adjacent to the garden centre -- 4 of 22 -- 5 GFA 2500m², a supermarket GFA 2750m², car park and landscaping. The total GFA for showrooms was 5100m². The funeral parlour etc was located at the northern end of the land. [8] The plans which accompanied the application the subject of the Koerner appeal also showed potential future development on the part of the land in between the approved developments, viz. a showroom GFA 1600m² adjacent to the supermarket, indoor sports centre GFA 5200m², to the north-west of that showroom and another showroom GFA 1200m² to the north of the sports centre. These representations on the approved plans were not the subject of the application before the Court in Koerner or of the Court’s approval. Wilson SC DCJ noted at paragraph 42 of his reasons “Precinct 7 (the land) contains a large area of almost 7 hectares and in a township of Coolum’s size it is unlikely to be developed all at once. In their present form the plans show that the developers have considered and planned for the balance area. Council’s requirement that the development which was not certain or approved be removed from the plans before final approval reflects no more than resolve that applications for any future developments should not be pre-judged so that a proper determination of them can proceed in due course on their merits.” [9] The application for material change of use the subject of this appeal sought a development permit for four showrooms total GFA 8315m², one of which was to include a sales or hire (timber) yard and garden centre. Specifically, approval was sought for two showrooms each GFA 600m² to the north and adjacent to existing approved showrooms, a showroom GFA 1300m² to the north and adjacent to the approved supermarket and a showroom GFA 5815m² generally in the area where an indoor sports centre (referred to above) had been earlier indicated. The application indicated the GFA 5815m² “showroom” was expected to be a “Bunnings” store. It was identified as such in the planning report which accompanied the application which referred to “four showrooms, one of which would be for a Bunnings Hardware and would include a garden centre and timber sales yard”. GFA of the store was 3845m², timber sales yard 830m² and garden centre 1157m², total GFA 5815m². [10] The respondent’s opposition to the proposal under appeal arises from the extent of showroom development on the land particularly with the proposed Bunnings store. -- 5 of 22 -- 6 The expert evidence about economic issues (Mr Leyshon and Mr Duane) demonstrated a Bunnings store as proposed on the land would have a very large trade area and act as an anchor and drawer for other tenants. The respondent’s position as explained in evidence from Mr Brown, a town planner who gave evidence for the respondent, was that this extent of showroom development on the land was well beyond that indicated in the planning scheme. The respondent’s reasons for refusal as enlarged upon during the pre-hearing process of the appeal in large part reflect that underlying view. In particular, the large showroom GFA 3845m² plus timber sales yard and garden centre together with other additional showroom development totalling an additional 8315m² plus 190 car parking spaces is at the heart of this appeal. [11] The onus is upon the appellant to show its appeal should be upheld. Section 4.1.50(1) Integrated Planning Act 1997 (Qld) (IPA). An appeal is by way of hearing anew Section 4.1.52(1) IPA. [12] Since the application, the subject of appeal 84 of 2006 was impact assessable, section 3.5.14(2) of IPA requires that the outcome: “(a) not compromise the achievement of the desired environmental outcomes (DEO’s) for the planning scheme area, or; (b) conflict with the planning scheme unless there are sufficient planning grounds to justify the decision” (approving the proposal). Public Notification and the Respondent’s Decision [13] The proposal was impact assessable. Public notification of the proposal brought forth 68 submissions. 20 supported the application, 48 opposed it. Those opposed referred variously to the absence of need, proximity to the motorway and visual amenity, traffic, adverse impact on Coolum township, non-compliance with the planning scheme. [14] A member of the respondent’s planning staff recommended approval of the application with conditions. The respondent refused the application. Reasons were -- 6 of 22 -- 7 provided. It was considered there was substantial conflict with the planning scheme and no sufficient planning grounds to justify approval. Fleshed out and added to during preparation of the appeal the reasons may be stated as: ƒ conflict with the planning scheme particularly with the intent of the planning area and precinct; ƒ with DEO’s; No. 2 Social Equity and Liveability Management; No. 3 Economic Sustainability; No. 6 Urban Design, Heritage and Character; ƒ with the provisions of the strategic plan about the land’s urban allocation, Section 3; Retail and Commerce, particularly the retail and commercial centres hierarchy strategy, Section 4; Visual Amenity, Section 7; ƒ an unacceptable impact on the regional and local economies of the shire; ƒ a lack of planning need for the proposed development; ƒ the proposed development of a Bunnings store together with the additional showrooms would create a centre of a kind and type “not envisaged for this location or indeed the Coolum locality”; ƒ the proposed Bunnings development was not a showroom but was more properly characterised as a shop and was not supported by the planning scheme. The Bunnings Store - Showroom [15] It is convenient to firstly consider whether the proposed Bunnings is a showroom as that term is defined in MP2000. [16] Both “shop” and “showroom” are defined in MP2000. Showroom means “the use of premises for the display and/or retail sale of goods (not including food items), primarily of a bulky nature” -- (The definition goes on to include reference to a number of generic items some of which are displayed and sold in a Bunnings store) -- 7 of 22 -- 8 “wholly or mainly indoors having a gross floor area of more than 450m². The term includes any area used for the selling of spare parts and the carrying out of repairs, servicing and detailing where such use is incidental to and necessarily associated with the showroom. The term does not include shops or sales and hire yard as specifically defined.” [17] “Shop” is defined to mean “the use of premises for the display and retail sale of goods to members of the public including (specifying a number of businesses) and premises: (a) premises having a gross floor area of less than 450m² that would otherwise be defined as a showroom; or (b) premises having a gross floor area of less than 100m² that would otherwise be defined as light industry; and includes a general store” [18] According to the Shorter Oxford Dictionary, bulky means “of large bulk, voluminous, massive, of too great size, unwieldy.” [19] The definition of “showroom” in MP2000 refers to the use made of the premises in question. Premises are not necessarily used for the display and/or retail sale of goods primarily of a bulky nature merely because something over 50% of shelf space may be able to be shown as containing goods which may be described as bulky, depending on the method of measurement used. The question is one of fact and degree. The amount of space which of necessity must be devoted to bulky items is only one factor. Other factors may have greater or lesser significance depending on the factual situation. [20] Evidence was put before the court by both the appellant and the respondent in support of contentions for the appropriate classification of a typical “Bunnings”. Mr Leyshon, a research analyst and town planner gave evidence for the appellant. Mr Duane, a market analyst with experience in retail and shopping centre analysis -- 8 of 22 -- 9 and Mr Walkley, a person with expertise and experience in market research gave evidence for the respondent. [21] Mr Leyshon and Mr Duane produced a joint report after meeting and discussion. The report sets out their points of agreement and disagreement. Mr Leyshon’s analysis of a typical Bunnings store concluded that on a lineal shelf measure, a typical store contained approximately 61.4% of space devoted to bulky merchandise and on a cubic capacity measure 71.8% of space was constituted by goods of a bulky nature. Mr Duane considered a typical Bunnings store was not adequately classified either as a showroom or shop as the terms were defined in MP2000. Mr Walkley inspected a Bunnings store at Victoria Point said to be similar to that proposed in the application and compared it also to another larger Bunnings store at Underwood. His analysis proceeded on the basis that bulky goods included heavy products which are relatively small, lighter products which are relatively large, long products which may not be voluminous but are unwieldy, require considerable shelf space and are difficult to transport inside a normal vehicle and large volume products which are awkward to carry. Bulkiness was about the product itself, not how it was displayed or stored. He concluded that about 53% of the display area at the Victoria Point store was related to products which were bulky according to his definitions. However, the vast majority of products for sale in the store were not of that nature. He considered the store operated as a typical large self service shop. Exhibit 19 provides a snapshot of some of the products displayed and sold from the floor and shelving in a Bunnings store. [22] Mr Walkley pointed out that in his experience when attempting to calculate or estimate space attributable to bulky or non-bulky items, an areal measure was typically used rather than lineal or cubic measure. When reviewing Mr Leyshon’s spreadsheet from which were derived his conclusions about percentages of bulky and non-bulky goods in a Bunnings store (see exhibit 17) use of the different measures, lineal and cubic resulted in differing estimates of bulky goods over a significantly high number of shelves measured depending on the type of product. Mr Leyshon’s percentages also included measurements of space used for bulky storage in addition to bulky retail and non-bulky retail and display. Removal of bulky storage reduced the percentage of bulky and non-bulky to: lineal measurement, bulky 40.5%, non-bulky 54%; cubic measurement, bulky, 56%, non- -- 9 of 22 -- 10 bulky 38%. He considered storage should not be included when considering the “use of premises for the display and/or retail sale of goods.” [23] Mr Leyshon’s evidence does not establish that the proposed Bunnings store is a “showroom” as that word is defined. Bunnings stores are of a fairly common pattern. There would be few people living in urban areas not familiar with a Bunnings store. The evidence and common knowledge shows they trade as large self-service outlets with roving assistants, a couple of specialised service desks and multiple checkouts selling a very diverse range of large and small items across a very wide spectrum of goods. Neither lineal nor cubic measure of shelf stored merchandise exclusively characterise premises as used for the display and/or retail sale of primarily bulky goods. By their nature bulky goods will occupy more space than smaller items and depending on their configuration lineal measurement or cubic measurement will yield a different result over a given display area. As Mr Walkley pointed out, the vast majority of good sold in a Bunnings store are not bulky in nature (even according to his somewhat liberal definition of what is bulky). [24] The proposed Bunnings store fits much more readily into the definition of “shop” in MP2000, albeit one that operates like a large supermarket, except that it does not display and sell food. It comprises “premises for the display and retail sale of goods to members of the public” and is not a showroom as defined. Although a significant area of space may be occupied by bulky goods it is not premises used for the display and/or retail sale of goods primarily of a bulky nature. The Planning Scheme [25] There is ample legal authority that construing town planning schemes should proceed in a commonsense fashion. They should be read as a whole broadly and not pedantically ZW Pty Ltd v Hughes and Partners Pty Ltd (1992) 1 Qd R 352; in a way which best achieves their apparent purpose and objects Luke v Maroochy Shire Council and Anor (2003) QPELR 447. Often, as Skoien SDCJ observed in Degee and Anor v Brisbane City Council (1988) QPELR 287 at 289 “a diligent search of the planning documents can unearth in such statements (of intent or of aims or objectives) passages which appear to argue for or against the proposal”. -- 10 of 22 -- 11 [26] The land is designated urban in the Strategic Plan, Volume 2 MP2000. Land so designated is identified as “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” Vol. 2, Clause 3.4.1. Non- residential activities are encouraged into nodes, Vol 2 Objective 3.5.6 Implementation Clause 2. Objective 3.5.6 provides that “local retail commercial and service uses should be part of the urban fabric”. Implementation clause 1 provides that in considering such uses in urban designated land “approval is only likely to be granted (to such 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”. [27] Volume 1, Clause 1.2 in general terms sets out the role of MP2000. The scheme intends, amongst other things to “(2)(c) recognise the individual character and needs of different areas across the shire”; “(2)(b) to regulate the development on and use of premises in the way which encourages orderly and sustainable growth having proper regard to environmental values, community needs, availability of services and facilities and choice”; “(2)(f), to provide a basis for assessing development applications”; “(2)(g) to provide residents, public authorities and investors with confidence about future land use and development within the shire”. Clause 1.5(2) “Land Use” provides that “The division of the shire into planning areas and precincts provides a key element of the development assessment process--- The planning areas and precincts and precinct classes 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--- Through appropriate Strategic Plan, Planning Area, Precinct and Code provisions, the Planning Scheme recognises and supports: -- 11 of 22 -- 12 ƒ the key regional centre role of Maroochydore; ƒ the subregional centre role of Nambour; ƒ higher order centre and supporting activities at Mooloolaba and Sippy Downs; ƒ the community and tourist roles of the centres of Buderim, Coolum Beach, Marcoola, the rail towns, the Blackall Range, Bli Bli and Kenilworth; ƒ a network of existing and future lower order local centres at suitable accessible locations throughout the shire; and ƒ a range of tourist facilities across the shire.” Clause 2.3 explains how the Strategic Plan, Planning Areas and Precincts are intended to work together. In the Shire there are a number of Planning Areas which “provide a link to the strategic plan through setting each area’s context and role within the shire”, Cl. 2.3(2). Each planning area is divided into precincts. The precincts “establish each localities context and role within the Planning Area and the desired future local character”, Cl. 2.3(3). “Proposals for impact assessment development as here 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 is situated which are set out in Volume 3”, Cl. 2.3(4). Such Proposals will also be assessed against the Strategic Plan, “The detailed local planning provisions in Volume 3 are intended to be based upon and reflective of the general principles in the Strategic Plan although it is the Planning Area Provisions in Volume 3 which represent council’s specific planning intent for the relevant localities” Cl. 2.3(5). In cases of inconsistency between Volume 2 Strategic Plan and Volume 3 Planning Areas and Precincts, the statements in Volume 3 prevail in that they represent “specific and considered planning intents for identified localities” Cl. 2.3(6). However, “when 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 -- 12 of 22 -- 13 be satisfied in order that development does not conflict with the planning scheme” Cl. 2.3(b). [28] Volume 3 of MP2000 contains the Planning Areas and their Precincts. The “key role” of Planning Area 11 in “is to consolidate the existing residential neighbourhoods of Coolum Beach, Point Arkwright and North Yaroomba whilst continuing to provide visitor accommodation in accordance with the Planning Area designation as a tourist node. The commercial centre will be developed to a level consistent with Coolum Beach Village Centre designation on the Strategic Plan”. Additional key roles include to “provide for Coolum beach to remain a small scale tourist centre”; to “provide for the Coolum Beach Village Centre to retain a small scale providing goods and services to residents and visitors to Coolum” Cl. 3.11.1. [29] The vision statement for Planning Area 11 intends that “Coolum will remain a small coastal community focused on its seaside location--”, Cl. 3.11.2(1). “--This means that Coolum Beach will remain a casual seaside village serving local retail business dining and entertainment needs only. The residents of Coolum have indicated they are prepared to forgo the provision of higher order and larger scale retail and commercial services in order to maintain local character and identity. Infill development within the village centre, but only is to be compatible with the small scale function of the centre and contributes to the casual beachside atmosphere of the locality”, Cl. 3.11.2(2)(a). [30] Key Character Elements of Planning Area 11 include: “(1) Location of Uses and Activities: (a) Commercial and business activities will be concentrated in the area north of Beach Road, south of Margaret Street and east of Sunrise Street. This will be a small scale Village Centre accommodating a mix of boutique retail business and community facilities. Within this Planning Area, the scale of retail and commercial activities will be limited to serving the immediate catchment area of Coolum and will not serve a district or a higher order function. -- 13 of 22 -- 14 (b) The existing small local centre facilities at the western end of the Yandina-Coolum Road is intended to continue its convenience centre role. Some light industrial uses may also be considered appropriate in this area. (c) The residential areas of Coolum Beach will provide a mix of housing types to accommodate permanent residents and visitors.” [31] No specific mention is made of Precinct 7 under “Location of Uses and activities”. Precinct 7 is not a village centre, a local centre or a residential area. It is rather what it is described as in the Precinct 7 provisions. [32] Precinct 7 is described as “Coolum West Gateway (Precinct Class = Master Planned Community)”. The intent for the precinct provides “This precinct is located on the Western boundary of the Planning Area and provides an important entry into the Coolum Beach township--- Council considers that a Local Area Structure Plan, overall master plan or other Development Plan for this precinct is required if the precinct were to be redeveloped. Showrooms would be an appropriate use for this precinct provided the following criteria were met to council’s satisfaction: ƒ buildings set within well-landscaped grounds; ƒ car parking located behind the buildings and not visible from the Sunshine Motorway and the Yandina-Coolum Road which forms the main entrance into the township; ƒ 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. --- In this precinct council would also support the establishment of a “Government Facility” node housing, police, fire and other necessary functions serving Coolum Beach and beyond” Cl. 3.11.4(7). [33] “Preferred and Acceptable Uses” are those “referred to in the Table of Development Assessment” (refer Volume 1) for the Master Planned Community Precinct class. -- 14 of 22 -- 15 The following uses may be considered consistent with the intent and desired character of this precinct and suitable for inclusion in detailed master planning where appropriately located, sighted and designed: ƒ Showrooms ƒ indoor recreation where an indoor sports centre ƒ outdoor recreation ƒ government facilities” Cl. 3.11.4(7). Discussion [34] Evidence about the economic impact of a Bunnings store was given by Mr Leyshon in the appellant’s case and by Mr Walkey and Mr Duane in the respondent’s case. [35] Mr Leyshon and Mr Duane concurred on the likely trade area were a Bunnings store to establish on the land. Its primary trade area would extend well beyond Coolum itself. It would reach almost to Bli Bli and Pacific Paradise in the south, to Marcus Beach and Weyba Downs in the north. Its secondary trade area west would extend to Eumundi and Yandina. Its secondary trade area north would extend to Noosa Heads and Tewantin. Mr Leyshon considered that even if the secondary trade area north was excluded because Bunnings established a larger store in Noosa, the total of proposed development was economically viable. Mr Duane considered otherwise. He considered the total of proposed development of showrooms economically unsupportable. Both considered likely impacts of the proposed development on Coolum Village included closure of the existing hardware there and relocation of other bulky goods including white goods businesses to the land. Both agreed in oral evidence to the Court that other small businesses in the local centre would be likely to be affected and may cease business. Both considered the total range of goods and services available in Coolum Village would not be adversely affected to any significant extent. Both agreed it was highly unlikely that the proposed development on the land would compromise the Maroochy Shire retail hierarchy as far as the two major activity centres of Nambour and Sippy Downs -- 15 of 22 -- 16 were concerned. There would be some slight impact on the principal activity centre of Maroochydore largely confined to the competition effects with respect to existing bulky goods retailers in that centre and nearby. Overall the retail hierarchy in Maroochy Shire so far as major centres were concerned would not be adversely affected. [36] Putting Precinct 7 to one side for a moment the Planning Area contains two precincts devoted to commercial uses, Precinct 1 Coolum Beach Village Centre (Village Centre) and Precinct 4 Coolum West Local Centre (Local Centre). The key role, vision statements and key character elements for the planning area make specific reference to these commercial centres but also make statements which may have application across the whole planning area viz. that a key role of the planning area is to provide for Coolum Beach to remain a small scale tourist centre, that Coolum Beach will remain a casual seaside village serving local retail and business needs only, that the residents of Coolum Beach have indicated a desire to forgo the provision of higher order and larger scale retail and commercial services in order to maintain local character and identity, that key elements include “within this Planning Area, the scale of retail and commercial activities will be limited to serving the immediate catchment area of Coolum and will not serve a district or a higher order function”. [37] When the intent and the statement of preferred and acceptable uses for Precinct 7 is addressed though, it appears that application of the statements I have referred to which may apply across the whole of Planning Area 11, is deprived of its apparent rigour. Showrooms, even indoor and outdoor recreation will by their nature draw from a greater area than Coolum Beach particularly when located beside the Sunshine Motorway and Yandina-Coolum Road. So may a government facility. It is expressly indicated that a police, fire and other necessary functions “may serve Coolum Beach and beyond”. That is not to say the statements are to be ignored. The statements must be read alongside the statements of intent and preferred and acceptable uses. Read together, the provisions of the scheme regarding development in Precinct 7 may be put into context. [38] Ms Stephens, a town planner gave evidence in the appellant’s case. It was her opinion that what would result from approval of the application for additional -- 16 of 22 -- 17 showrooms on the land was contemplated, indeed encouraged by the Planning Scheme. Whilst I understand the reasoning Ms Stephens applied in formulating her opinion, I do not in the final analysis find it persuasive. [39] Mr Brown, a town planner gave evidence in the respondent’s case. He considered the reference to showrooms as an acceptable use in precinct 7 in the context of the planning scheme was a reference to showrooms of relatively small scale. What was proposed was of a larger scale and unsupported by the provisions of the scheme particularly because of its size when the contemplated Bunnings was included and the anchoring and pulling power of a Bunnings store. [40] I consider Mr Brown’s analysis of the planning scheme as it applies to the land a correct analysis. The scale of development by which he meant the intensity of development both in proliferation of showrooms (or showrooms and shop) and the catchment reach exceeds that which is contemplated by the planning scheme as a whole in Planning Area 11 and Precinct 7 in particular. [41] When the provisions for the planning area are read together with the indicated intent and preferred and acceptable uses in precinct 7 uses of the scale here designed to reach out as widely as disclosed by the evidence are not supported by the planning scheme. The precinct 7 provisions are not a carte blanche to develop the land with showrooms or any other use indicated (or a shop). The precinct is what it is described as in Planning Area 11, a master planned community in prospect in the planning area where certain nominated commercial or administrative uses and node housing subject to certain conditions may be appropriate. Showrooms are one of those uses. One of the conditions is that items for sale “should be restricted to larger scale items such as bulky goods”. All uses are required to be appropriately located, sited and designed. A local area structure plan, overall master plan or other development plan is indicated. This implies a need to consider the overall mix or type of uses across the whole site, consideration informed by the key roles, vision and key character elements of the planning area. These have a role to play in understanding the Planning Scheme as it applies to this proposal. So do the provisions of the Strategic Plan. -- 17 of 22 -- 18 [42] It is not a correct approach to MP2000 to focus on precinct 7 as a stand alone precinct where according to the planning scheme, showrooms would, amongst other things be an acceptable use and conclude that any extent of showroom development is supportable. A wider consideration of the Planning Scheme is required. An evident intention in the planning scheme for showrooms on the land does not override other provision of the Scheme and imply any level of showroom development. [43] The Koerner appeal involved different considerations. I mention this because it is referred to in the evidence of some of the appellant’s witnesses. It was a submitter appeal against the respondent’s approval of the development sought. The real issue on the appeal was the approval of the supermarket. His Honour found there was clear evidence of overwhelming need for the supermarket at Coolum which could not be accommodated in any of the other two commercial precincts in the planning area. He dismissed the appeal. [44] Unlike Koerner, the evidence in this appeal does not show there was need in a planning sense for the additional showroom development or specifically a Bunnings store on the land. A need in planning terms is a particular type of need. Whether that exists depends upon all the circumstances which a planning authority must take into account. It is relative concept Intrafield Pty Ltd v Redlands Shire Council (2001) QCA 116. It is a community need. As explained in Skateway Pty Ltd v Brisbane City Council & Anor (1980) QPLR 249 “--it connotes the idea that the physical wellbeing of the community or some part of it can be better and more conveniently served by providing the means for ensuring the provision of that facility subject always to other considerations of the town planning kind” per Skoien SDCJ. McLauchlan QC DCJ put it in terms of inadequacy of existing arrangements in Intrafield. If that was not demonstrated no planning need was demonstrated. [45] Visual amenity is relevant to a decision about proposed development. Provisions about it are contained in Section 7 of the Strategic Plan. Key issues include that visual amenity issues are intrinsic to the planning assessment of all development proposals. The basis of the visual amenity strategy includes “the effect of the visual quality, scale and character of built environment elements relative to natural -- 18 of 22 -- 19 elements --- the compatibility of new development to the scale, character and visual quality of the existing urban fabric and landscape with the potential impact on local character and identity --- the importance of major roads, particularly the Sunshine Motorway --- which offer ever changing experiences of the diverse range of landscapes evident in the Shire, in conveying a Shire image to residents and tourists. Objectives and implementation measures include managing development along and visible from roads such as the Sunshine Motorway. Issues of visual amenity are a part of the overall consideration of any development proposal. [46] Landscaping has a bearing on visual amenity. In Koerner it was considered proposed landscaping would provide visual protection of the then proposed development from the Sunshine Motorway. In this appeal the appellant put evidence before the Court from Mr Van Pelt and Mr Ferrier and the respondent from Mr O’Brien. All are landscape architects. It was accepted that views of the proposed development on the land from the Sunshine Motorway and Barns Lane were very significant. [47] The building indicated as the proposed Bunnings would be of considerable bulk and present as a large warehouse or industrial shed. The evidence was that established appropriate landscaping would soften its visual impact. So too would conditions requiring some articulation of the building to reduce its shed like appearance. Mr Cross an architect gave evidence about this in the appellant’s case. Additionally and importantly, thorough screening of the development from the Sunshine Motorway and Yandina-Coolum Road should be established and maintained. A matter of some significance is the eventual duplication of the Sunshine Motorway which may reduce potential area for planting. [48] Mr Ferrier had prepared a landscape plan for the land. It is attached to Exhibit 8. If established and maintained as Mr Ferrier envisages, it would, I think, be effective to screen the development proposed on the land after three to five years. I was not entirely clear whether the plantings envisaged can be achieved along the Sunshine Motorway frontage given the extent of available land when land for the Sunshine Motorway duplication is taken into account. Mr Ferrier considered there was sufficient area on the land to achieve that which he envisaged. -- 19 of 22 -- 20 [49] DEO’s for the Shire are set out in the vision statement of the Strategic Plan. The reference to specific DEO’s in the respondent’s reasons for refusal are, as I understand it, reflective of its view that the intensity of showroom development on the land (particularly with a Bunnings store) compromises the planning schemes retail and commercial centre hierarchy because of its potential reach, its intensity. [50] In MP2000’s overview of the planning scheme Volume 1 Cl. 1.5(b) the purpose of DEO’s is explained. They reflect core matters which are the overriding consideration in addressing proposals which conflict with the other provisions of the planning scheme. Their achievement is facilitated by measures which “describe the intent for and desired character of each different locality within the Shire”. [51] DEO 2 Social Equity and Liveability relates to the integration of uses in local communities. It is for the establishment and maintenance of “vibrant, attractive and safe local communities --- exhibiting a distinctive character and sense of place and having convenient access to a diversity of housing, shopping and other business services, community and recreational facilities and jobs --- all located and designed to sustain the significant ecological and scenic resources of the Shire”. [52] DEO 3 and 6 Economic Sustainability and Urban Design Heritage and Character relate directly to maintenance of the shire’s commercial hierarchy. DEO 3 is for “a prosperous, productive and broad economy which reinforces the shire’s strengths in tourism, commercial/business services, rural activities, educational and health facilities and transport infrastructure --- It --- includes Maroochydore fulfilling its role as a Key Regional Centre, complimented by a hierarchy of lower order centres at suitably accessible locations across the shire and Local Centres which do not compromise the role and function of higher order centres.” DEO 6 is for “a high quality built environment characterised by premises which are consistent with local desired character which reflects the Shire’s diverse range of subtropical, coastal, mountain and rural settlements --- if part of a retail or commercial centre creates a positive community focal point that contributes to the sense of place and community identity and which is in keeping with reasonable expectations about the location and size of such centres ---”. Implementation measure (2)(h) for this DEO links it with the retail and commercial hierarchy for the Shire, “through the Retail and Commercial Centres Hierarchy described in the Strategic Plan and the Centre -- 20 of 22 -- 21 Precincts or sites specifically identified in the Planning Areas, ensure Local Centres are located at sites that are specifically identified in the Planning Scheme and are of a scale consistent with Statements of Desired Precinct Key Character Elements in Volume 3”. [53] The respondent submitted that when the planning scheme as a whole is addressed, the provisions of the strategic plan and the provisions for planning area 11 including those for precinct 7, these DEOs’, in particular DEOs’ 3 and 6 have been compromised on a shire wide basis. [54] I have referred to the opinions of the economic experts above. The proposed development will not adversely affect the retail hierarchy in the shire so far as major centres are concerned. Mr Brown put it another way. He said that approval of the proposal under appeal in light of its scale would not facilitate or assist to encourage the development of Maroochydore as the principal centre for a wide range of uses including showrooms because, at least potentially, it would slow the rate of development of showroom retail development at the principal centre. Putting it in terms of DEO 3 it would not “reinforce the roles in the various centres including Maroochydore as a Key Regional Centre ---” [55] The nature and likely intensity of the proposed uses in addition to what has already been approved for the land would have a wide reach well beyond Coolum and its environs. Whether that compromises the DEOs’ involves the extent of impact the intensity of the development will be likely to have on the commercial hierarchy. What must appear is “an obvious and significant cutting across of the DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised” Koerner at paragraph 25. In those terms, I would not conclude on the evidence that the proposal compromises the DEOs’. Its apparent reach and intensity however will mean it is likely to become a lower order centre of significant proportions. If approved its “showroom” component would be about one half the GFA of showroom space at Maroochydore Homemaker Centre which itself is amongst the biggest such centres in Australia. -- 21 of 22 -- 22 Decision [56] 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. [57] It may be concluded from the evidence that what is proposed, together with that already approved, would be accessed by persons from across a wide area. Consumers’ choice no doubt would be enlarged. That, however, is a long way from showing existing facilities of the type proposed are inadequately provided for. [58] I do not consider any planning grounds sufficient to overcome the conflict with the provisions of the scheme are evident. The appellant has not discharged its onus. [59] Appeal 84 of 2006 is dismissed. -- 22 of 22 --