Commonwealth Bank Officers Superannuation Co Pty Ltd v Mackay City Council & Ors [2001] QPEC 21

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Commonwealth Bank Officers Superannuation Corporation P/L v Mackay City Council & Ors [2001] QPE 021 FILE NO PARTIES: 5078 of 2000 COMMONWEALTH BANK OFFICERS SUPERANNUATION CORPORATION PTY LTD Appellant v MACKAY CITY COUNCIL Respondent and AUSTRALIAN CAPITAL HOLDINGS PTY LTD Co-respondent FILE NO: 5157 of 2000 PARTIES: SUNCORP METWAY INSURANCE LIMITED Appellant v MACKAY CITY COUNCIL Respondent and AUSTRALIAN CAPITAL HOLDINGS PTY LTD Co-respondent FILE NO: PARTIES: DIVISION: PROCEEDING: 5 of 2000 FERNHUNT PTY LTD, SUNGER PTY LTD, KEVIN ELLUL AND CATHERINE ELLUL Appellants v MACKAY CITY COUNCIL Respondent and AUSTRALIAN CAPITAL HOLDINGS PTY LTD Co-respondent Planning and Environment Court Preliminary point ORIGINATING COURT: -- 1 of 10 -- 2 DELIVERED ON: 6 April 2001 DELIVERED AT: Brisbane HEARING DATE: 22 March 2001 JUDGE: Judge Quirk ORDER: CATCHWORDS: COUNSEL: Mr D Gore QC for the appellant Suncorp Metway Insurance Limited Mr S Ure for the appellant Fernhunt Pty Ltd and Ors Mr J Davies for the appellant Commonwealth Bank Superannuation Corporation Pty Ltd Mr C Hughes for the respondent Mackay City Council Mr G Gibson QC & Mr R Litster for the co-respondent Australian Capital Holdings Pty Ltd SOLICITORS: Clayton Utz for the appellant Suncorp Metway Insurance Limited SR Wallace & Wallace for the appellant Fernhunt Pty Ltd and Ors Gadens Lawyers for the appellant Commonwealth Bank SB Wright & Wright and Condie for the respondent Mackay City Council McCullough Robertson for the co-respondent Australian Capital Holdings Pty Ltd [1] In these matters the appellant Suncorp seeks certain preliminary rulings concerning the validity of an application made by the respondent Australian Capital Holdings Pty Ltd and its approval by the respondent Council. The success of this application is the subject of three appeals. The appeals by parties other than Suncorp are being heard together with the latter’s appeal. The appellants in those appeals have supported Suncorp in seeking the rulings on this occasion. [2] The application in question was made in November of 1999. The application form and accompanying material is before the court. The subject land was identified as -- 2 of 10 -- 3 Lot 1 on RP 864641 having an area of 4.641 hectares. It is plainly stated that the application had two components being an “IDAS Development Application” for permits for; 1. A material change of use 2. A reconfiguration of the subject land. [3] The proposal was described specifically as: “Subdivision into three allotments and development of a freestanding supermarket on one of the proposed allotments.” The “area subject to the Material Change of Use application” was given as 1.18 hectares. The use subject to that part of the application was described as “vacant land to be developed for a stand alone supermarket”. [4] A set of drawings which accompanied the application gave further information about the proposal. The location of the supermarket building (g.f.a. 3,344 metres square) on proposed lot 1 (1.18 hectares) was indicated as was the parking area layout and means of access to Oak Street. This was to be by way of an easement (occupying an area of 690 metres square) over proposed lot 2 and a short length of roadway (1,450 metres square) to be opened at the Oak Street frontage between lots 1 and 2. [5] The appellants’ complaints about the application and its approval which formed the basis of the ruling sought were threefold. For convenience they were described as; 1. The “area point” and the “designated development point” -- 3 of 10 -- 4 2. The “characterization point” 3. The “new use point”. 1. The first of the points made went not so much to the validity of the application itself but to the absence in the matter of any “Referral Co-Ordination” under the Integrated Planning Act. When the application was made s.6.1.35C(1) of the Integrated Planning Act provided: “(1) Referral co-ordination is required for an application – (a) for development that is assessable under a planning scheme and that the assessment manager is satisfied is not minor or of an ancillary nature; and (b) that is one or more of the following – (i) a material change of use for a designated development ...” [6] Section 6.1.35C(5) picked up the definition of “designated development” found in Schedule 1 of the former Planning and Environment Regulations. Item 24 in that Schedule was “major shopping development” which was defined as: “A development for the purpose of retailing to the public – (a) situated on land greater than 2.5 hectares in area ...” [7] The appellants’ contention in this matter was that the applicant “deliberately sought to avoid the characterization of “major shopping development” by artificially nominating an area less than 2.5 hectares (viz. 1.18 hectares). The argument went on that this subterfuge failed because, on a proper construction of relevant -- 4 of 10 -- 5 provisions, the whole of existing Lot 1 must be regarded as the “site for the material change of use application”. [8] Had there been anything in the point it might have been a matter of some consequence. The Integrated Planning Act provides that the referral stage (if necessary) occurs prior to the notification stage (Parts 3 and 4 of Chapter 3) and the referral responses are part of the material available for public scrutiny (s.3.2.8). Furthermore the notification periods for matters involving referral is double that when referral is not required (s.3.4.5). [9] In my view of the evidence before me there is nothing in the point. Identification of the true nature of the application itself is not confined to a reading of the application form or, for that matter, the public notice. Reference must also be had to the accompanying documentation and plans (see Rathera Pty Ltd v Gold Coast City Council & Ors (2000) QCA 506 at para. 19). [10] Although the land the subject of the twofold application was correctly identified as Lot 1 on RP 864641, the land upon which the shopping facility was to be situated was unmistakably identified as Proposed Lot 1 (which resulted from the intended configuration) and had an area of only 1.18 hectares. [11] Even if one included the area of the land to be dedicated as roadway, the easement, and the whole of Lot 3 (which is to be given over as a public reserve and over which there is to be a walkway by means of which access may be had to the shopping facility) the resultant area falls well short of 2.5 hectares. -- 5 of 10 -- 6 [12] On an sensible reading of the relevant material, nothing outside these areas could be said to be land upon which is to be situated a development for the purpose of retailing to the public. 2. The second matter raised involved the public notice which described the proposal subject to the application for material change of use as “Shopping Centre (Woolworths)”. It was pointed out that the relevant Town Planning Scheme contains separate definitions of “Shop” and “Shopping Centre”. The argument went on that the proposal was not within the “Shopping Centre” definition but was a “Shop”. Accordingly the public were misled. [13] The relevant definitions are as follows: “ ‘Shop’ means any premises used for the display and sale of goods to the public, and for a hairdressing salon, a barber’s shop and a video outlet, but does not include any separately defined purpose; ‘Shopping Centre’ means any premises, comprising one or more buildings in the form of an integrated development established in a coordinated manner and which has a gross floor area of not less than 200 m2 , which is used predominantly for a shop or shops, together with any one or more of the following business premises: . Catering shop . Commercial premises . Indoor entertainment . Health centre . Professional office . Service industry (having a gross floor area of not more than 100 square metres . Showroom” -- 6 of 10 -- 7 [14] The point requires a careful reading of the definition of “Shopping Centre”. There is no question that the intended GFA is here in excess of 200 metres square. It is equally clear that the intended use is “predominantly for a shop or shops”. Success for the appellants’ argument calls for construction of the wording including and following “together with” as identifying an essential component of a “Shopping Centre”. None of the elements identified in the bullet points is intended in this case. [15] In my view such a construction conflicts with common sense and experience. Shopping centres of this order while often containing specialty shops in addition to a major tenant often have no activities of the kind identified in the bullet points. Sensibly read these words should be seen as permissive rather than setting any obligatory component. [16] Such a construction is supported by a reading of the scheme as a whole which in the definition of “Shop”, “Shopping Centre” (not less than 200 metres square) and “Shopping Complex” (not less than 30,000 metres square) establish a mutually exclusive hierarchy of shopping facilities. I am satisfied that the proposal is a “Shopping Centre” and that the public were not misled. 3. The last point made by the appellants concerns two conditions of approval which provide : “M82. The proposed development shall comply with Plan of -- 7 of 10 -- 8 Development 616 SD 01 Rev.G, as amended 2 October 2000 that forms part of this Application, except as otherwise specified by any condition of this approval. M83. A suitable lease agreement is to be drafted between Mackay City Council and Australian Capital Holdings and subsequent owners of the proposed building, over the 50m2 of shopfront and the provision of services to it. The shop front is intended to be used by Council for the agreed purpose of community facilities associated with the development of the “Neighbourhood Centre” concept under the Strategic Plan as shown on approved Plan of Development 616 SD 01 Revision G, as dated 15 December ’99 and amended 2nd October 2000. Should the use of the 50m2 lease for the purpose of a community facilities come to an end and not be resumed then, with the expressed agreement of all parties to the lease (including Council), the lease area will revert to being included within the predominant use, ie single tenant shopping facility.”23 [17] Prior to the decision the Council raised with the applicant the matter of the proposal’s being a component of a “Neighbourhood Centre” for Andergrove as identified in the Strategic Plan. It was pointed out that the Strategic Plan referred to three major components of the Neighbourhood Centre being : -- 8 of 10 -- 9 “. Discount Supermarket . Specialty Stores; and . Community Facilities”. [18] The Council suggested: “If the proposal is to be considered part of a Neighbourhood Centre” there is a need for community facilities to be provided to support the Neighbourhood Centre concept”. [19] The applicant was prepared to accept the suggestion and the conditions in question were imposed. An amended site plan was drawn which showed a “Community Facility” occupying 50 metres square at the north eastern frontage of the shopping complex. A “Police Beat” facility in this area has been mentioned as a possibility. [20] The apellants’ contention is that this involves an impermissible change to the application. Attention was drawn to s. 3.2.10(c) which allows such a change to an application only where: “The change to the application, if the notification stage were to apply to the change, would not be likely to attract the submission objecting to the thing comprising the change”. [21] I doubt whether the matter is one that would have been likely to give rise to an adverse submission that would not have been provoked by the original application. Somewhat ironically the absence of any community facilities was a matter about which a complaint was made by Suncorp. -- 9 of 10 -- 10 [22] However what we are here dealing with is not something initiated by the applicant but a condition imposed by the Council which the applicant is not resisting. The requirement is essentially that a relatively minor part of the premises be kept available to be leased by the Council (for community facilities) if it chooses to do so. [23] Nothing in the approval given to the applicant authorizes, in a planning sense, the use of that area for any purposes such as have been mentioned. If any further development permit is required it will need to be obtained in the appropriate way. [24] At the hearing of the appeal whether the condition is an appropriate condition may be debated. Whether the condition should stand is not a matter which, in my view, should be decided at this point. [25] Accordingly I refuse to make the ruling sought by the appellants. -- 10 of 10 --