Fernhunt Pty Ltd & Ors v Mackay City Council & Anor [2002] QPEC 17 [2002] QPELR 447

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Fernhunt P/L & Ors v Mackay City Council & Anor [2002] QPEC 017 PARTIES: FERNHUNT PTY LTD ACN 052 469 717 SUNGER PTY LTD ACN 073 126 735 KEVIN ELLUL AND CATHERINE ELLUL Appellants v MACKAY CITY COUNCIL Respondent and AUSTRALIAN CAPITAL HOLDINGS PTY LTD ACN 087 497 863 Co-respondent FILE NO/S: 5/2000 (Mackay) 900/01 (Brisbane) DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Mackay DELIVERED ON: 19 April 2002 DELIVERED AT: Brisbane HEARING DATE: 25-28 February 2002 JUDGE: Quirk DCJ ORDER: Appeal dismissed CATCHWORDS: COUNSEL: Mr S Ure for the appellants Mr C Hughes SC for the respondent Mr P Lyons QC for the co-respondent SOLICITORS: Wallace & Wallace for the appellants SB Wright Wright & Condie for the respondent Suthers Taylor for the co-respondent -- 1 of 8 -- 2 [1] This appeal is by adverse submitters against the respondent’s decision to approve an application made by the co-respondent for: • a reconfiguration of land into three allotments; • a development permit for a material change of use of one of the allotments to enable it to be developed as a freestanding supermarket. [2] The land occupies an area of 4.641 hectares and has frontage to the southern side of Oak Street at Andergrove. It was included in the Rural Residential Zone under the Town Planning Scheme for Mackay. [3] It is intended that Lot 1 (1.18 hectares) will be the site of the supermarket which will occupy 3,344 square metres of floor space. Evidence indicated that Woolworths are prepared to tenant it. Approximately 200 on-site carparking spaces will be provided and the site will be appropriately landscaped. [4] Lot 2 (2.8 hectares) will, in the future, be developed for residential purposes. A stub road is to be constructed between Lots 1 and 2 beyond which access to Lot 1 will be gained by way of an easement over Lot 2. Lot 3 (4790 square metres) includes a drainage line and is intended to be dedicated as parkland. A pedestrian link to Geoffrey Nolan Drive will be provided across it. [5] Oak Street is shown on the relevant planning documents as being a sub-arterial road. Surrounding land is generally subdivided for residential use although, at present, land to the east remaines undeveloped. To the north of Oak Street and some short distance to the west of the site, a shopping centre known as “Andergrove Central Square” has been established. It is located on an island of land surrounded -- 2 of 8 -- 3 by Tropical Avenue, Oak Street and Central Drive and extends to an allotment of 2,320 square metres on the western side of Central Drive. [6] The issues raised against the proposal include: • Need; • Alleged conflict with the formal planning documents; • Amenity impacts. [7] In respect of need I had the advantage of three urban economic analysts, Messrs Norling, Owen and Duane. There was no issue that the relevant trade area has a population of in the order of 16,000. This trade area does not presently have the benefit of a full line supermarket. Two comparable facilities are located between 2.5 kilometres and 8 kilometres from the trade area population and, notwithstanding Mr Norling’s suggestion that to have to go such distance was not beyond the bounds of reasonableness, I am satisfied that it would not be fair to say that, in this day and age, these facilities should be regarded as being reasonably accessible to the people of Andergrove. In this matter I am comforted by the evidence of a young mother who lives nearby who explained the difficulties that she faces when she has to shop (with her young children) at Mt Pleasant. [8] The appellant’s case appeared to be that it was not opposed to any supermarket on the site but did not favour one which was stand alone and occupied 3,344 square metres. It was contended that a supermarket appropriately sized could be established in, or adjacent to, the existing Andergrove Central Square Development. It was also argued that a facility of the size intended here would have an unacceptably adverse impact on the viability of existing retail businesses in the Andergrove area. -- 3 of 8 -- 4 [9] In the end result the evidence on need was really one way and supported, in my view of it, the following findings: • There is a sufficient population in the primary trade area to call for a facility of this size. • The site is centrally and conveniently located to the residents of the primary trade area having direct frontage to a sub- arterial road and opportunity for adequate and convenient on-site carparking. • The proposal, being a stand alone facility, will offer a higher level of convenience than is available at larger “shopping centre based” facilities at Mt Pleasant, Canelands or the Central Business District. • The proposal will provide focus for retail activity in the Andergrove area and will diminish the level of “escape expenditure” which is now substantial. [10] In respect of the last matter, I am satisfied that this will work sufficiently against the prospect of adverse impact upon the economic viability of existing facilities. It is also to be noted that opposition to the proposal from local traders was not universal. While some competition will inevitably occur (whether it comes from this proposal or another), that residents will no longer be required to leave the area for supermarket shopping and visit centres where many other shopping opportunities exists will, I believe, constitute some not insubstantial benefit to local traders. Ultimately, need must be assessed in terms of community benefit and I find that, in this case, it is not a matter that should stand in the way of the proposal. -- 4 of 8 -- 5 [11] I turn now to the formal planning documents. In the Town Planning Scheme the land is included in the Rural Residential Zone. It was not really in issue that this zone should be seen as a “holding zone” and has no adverse implications for the proposal. [12] In the Strategic Plan the land is designated in the Higher Density Residential designation. However the Strategic Plan must be read as a whole and, as will be discussed in more detail in a moment, where it also makes provision for the establishment of a neighbourhood centre, the Higher Density Residential designation is not necessarily inconsistent with this. [13] The debate conducted in this appeal in respect of the Strategic Plan focussed upon the Neighbourhood Centre designation which appears on the Plan as a “N” superimposed upon other designations and positioned on the northern side of Oak Street midway between the commercially designated land which appears to indicate the existing Andergrove Central Square Centre and Maple Drive which is well to the east of the subject land. The appellants sought to derive some comfort from the fact that the Neighbourhood Centre designation was on the opposite side of Oak Street. [14] The Strategic Plan must however be read sensibly and in its entirety. In its overall vision the Strategic Plan emphasizes the importance of access being : “ available to a wide range of conveniently and efficiently provided employment opportunities, commercial services and community, cultural and recreation facilities and that these opportunities, services and facilities are accessible to all the community.” [15] In s.2.2 of the Strategic Plan which deals with “Principles for Development and Use of Premises” the following statement appears: -- 5 of 8 -- 6 “Development in Urban Areas The pattern and sequencing of urban development should contribute to the creation of accessible communities; urban development should focus on the establishment of largely fully serviced and self contained neighbourhoods which evoke a sense of community belonging and accessibility by all citizens.” [16] “Commercial Areas” are a dealt with specifically in s. 3.5. The intent is put as follows: “This land use allocation is intended to provide for a range of commercial centres appropriate to the needs of the city. In order that the widest range of goods and services can be provided to residents and to ensure the ongoing viability of centres, a hierarchy of centres is intended”. The section goes on to define the elements of this hierarchy and Neighbourhood Centres is dealt with as follows: “Indicative locations for the development of Neighbourhood Centres are shown on Strategic Plan Map 1-4. These are at ... Andergrove ... These centres are intended to provide a focus for the establishment of accessible neighbourhood shopping and community facilities which meet the needs of the residents in nearby suburbs. A total retail floor area of 5,000 square metres is envisaged at these centres comprising a discount supermarket and specialty stores”. “Discount supermarket” is not a defined term but a sensible reading of it would, in my view, suggest a large supermarket where a wide range of competitively priced merchandise is presented. This is such a facility. [17] The Strategic Plan is not, in my reading of it, amenable to too fine an interpretation. To read it as precluding the establishment of a facility of this kind to the south of Oak Street would be, I believe, such an interpretation. What can be gleaned from the Strategic Plan is that intends this general location to be the focus of retail activity at a neighbourhood level. If one accepts, as I do on the evidence, that the -- 6 of 8 -- 7 communities interests justify the establishment of a supermarket of this size in the area, this is an appropriate location for such a facility. [18] The appellant’s case that it should establish in or adjacent to the existing centre ignores the physical difficulties of doing this. It was accepted that a road closure would probably be involved and it has also to be recognized that land west of Tropical Avenue and north of Oak Street has moved from the Local Business Zone to a residential zoning. Approval has been given for its subdivision. From an accessibility point of view, such a location would be irregularly shaped and awkward. The Woolworths’ senior executive who gave evidence indicated that, for the reasons which he explained, he would not be interested in such a location. [19] The location of the subject land has the advantage of being: • regularly shaped; • highly accessible (having direct access to a sub-arterial road); • conveniently located for the catchment population; • well positioned to achieve the Strategic Plan’s objective of establishing a retail focus at a neighbourhood level at Andergrove that complements the existing retail activities in the area. [20] I am satisfied that there is no inconsistency with the Strategic Plan but, if this was not the case, there are ample planning grounds to justify approving the application despite any conflict. -- 7 of 8 -- 8 [21] At one point it seemed to be suggested that the proposal might give rise to some amenity difficulties. However the evidence indicated otherwise in quite a clear way. I am satisfied that conditions of approval will deal adequately with any potential amenity concerns. [22] On the whole of the evidence I am satisfied that the application is one which should be approved. Accordingly the appeal must be dismissed. -- 8 of 8 --