Charles Porter & Sons Pty Ltd v Mackay City Council & Ors [2000] QPEC 79

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Charles Porter & Sons Pty Ltd v. Mackay City Council & Ors [2000] QPE 079 PARTIES: CHARLES PORTER & SONS PTY LTD Applicant And MACKAY CITY COUNCIL First Respondent And BUREYA PTY LTD Second Respondent And BUNNINGS BUILDING SUPPLIES PTY LTD Third Respondent FILE NO/S: 4565 of 2000 DIVISION: Planning and Environment PROCEEDING: ORIGINATING COURT: Brisbane DELIVERED ON: 19 December 2000 DELIVERED AT: Brisbane HEARING DATE: 12 December 2000 JUDGE: Judge Quirk ORDER: CATCHWORDS: Russell v. Pine Rivers Shire Council & Ors 1996 QPELR 241; Waringah Shire Council v. Jennings Group Ltd 1992 75 LGRA 402; Shire of Perth v. O’Keefe 1964 LGRA 147); COUNSEL: Mr S.Ure for the applicant Mr W.Everson for the first respondent Mr J.Gallagher QC & Mr R.Litster for the second respondent Mr R.Bowie for the third respondent SOLICITORS: Wilson Ryan & Grose for the applicant SB Wright & Wright & Condie for the first respondent Suthers Taylor for the second respondent Minter Ellison for the third respondent -- 1 of 9 -- 2 [1] In this matter declaratory relief is sought in respect of the conformity of a proposed Development at Mackay with a Plan of Development which was part of an approval given by this Court on 3 November 2000. [2] The amended application sought the relief on a number of grounds but at the hearing only one issue was pursued. That related to the proposal’s conformity with the definition of “Showroom-General (Greenfields)” which formed part of the Plan of Development incorporated in the Court order. [3] The effect of the order is that, if the proposal conforms with the definition, it requires a code assessment only. This is the basis upon which the respondent counsel is evidently prepared to deal with the matter. It has indicated in a letter (Exhibit 1) that subject to the disposal of these particular proceedings, it is prepared to issue a development permit in respect of the proposal. The appellant here suggests that the proposal does not conform with the definition and that an impact assessment would be required before a development permit could issue. [4] To put the matter in perspective, something of its history must be set out. 1. In July 1998 a development application for this site was lodged with the council. 2. Public notification indicated that the proposed development was for “commercial uses”. 3. Submissions against the proposal were received from three parties. Interestingly enough, these did not include the applicant before me, Charles Porter & Sons Pty Ltd, which is the operator of a retailing organisation comparable to that of the third respondent, Bunnings. Perhaps this is not -- 2 of 9 -- 3 suprising as the material indicates that, at about the time of the notification period, a principal of Charles Porter was expressing interest in establishing an outlet on the subject land. 4. The application was conditionally approved by the council. 5. Appeals against this decision were lodged by two of the submitters, Suncorp Metway and CBA. 6. I was informed by Phillip Dance, town planning consultant to the developer, Bureya (the second respondent), that the concerns of the appellants:- “focused on the breadth of the range of uses available for code assessment if the preliminary approval application were approved and the prospect that Lot 202 might be developed as a Shopping Centre with a number of small tenancies with only code assessment.” 7. In his account of what occurred, Mr Dance added:- “to respond to the concerns of CBA and Suncorp Metway an amended Plan of Development was prepared in consultation with the council, CBA and Suncorp Metway which makes reference to a site specific purpose definition – “Showroom-General (Greenfields)”and thereby refined the scope of the uses to be permitted on Lot 202 and identified performance size with which buildings proposed for Lot 202 must substantially accord”. 8. The dispute between Bureau and the appellants was resolved and an order of this Court was made on 3 November 2000 granting “preliminary approval of the application in accordance with conditions, a Plan of Development and a Layout Plan”. 9. Material before me includes a series of correspondence which indicates the manner in which the Plan of Development and particularly the definition upon which this application focussed was settled prior to the making of this Court order. The material also indicates that, at all relevant times, the -- 3 of 9 -- 4 council (and the other parties to the appeal) were plainly aware that Bunnings (the third respondent) was the intended tenant for “proposed building No 1” as shown on the site plan. Bunnings Buildings Supplies is a very-known organisation that operates nationally. As explained by its Queensland Property Development Manager, Anneke Jones:- “Bunnings have numerous stores throughout Australia. The typical Bunnings customer is generally seeking produce for home making and home improvement including ‘do-it- yourself’options. The strong tend in the industry is towards larger showroom type facilities selling an increasing range of products as customers want to be able to purchase all their required items in one place”. [5] Bunnings had made an agreement to lease the relevant building from Bureya whose responsibility it is to obtain all necessary planning consents. It is against that background that the Plan of Development was crafted. In the circumstances to suggest that the relevant definition was intended to exclude an operation, the nature of which is very well known, borders upon the absurd. Nevertheless, the planning approval given by the council must be construed according to its terms which are conveniently found as part of Exhibit H to the Affidavit of Barry William Porter, a principal of the applicant. [6] Importantly (in Clause 3.1) the Plan indicates that:- “The land may be used for Showroom-General (Greenfields) (as that term is defined in this Plan of Development - Appendix “A”) Clause 3.3 indicates that:- “Preliminary approval only is granted for the use of the land for a Showroom-General (Greenfields) (as defined in the Plan of Development – Appendix “A”) in accordance with the Plan of Development – Appendix “A”. Before the use of the land for that purpose is commenced a development permit for a material change of use subject to code -- 4 of 9 -- 5 assessment must take effect in accordance with s.3.5.19 of the Integrated Planning Act.” [7] During the hearing of the application the definition of “Showroom-General (Greenfields)” was the focus of attention. It was in these terms:- “2.1 DEFINITION (SHOWROOM-GENERAL (GREENFIELDS)) For the purposes of this plan of development the term: “Showroom-General (Greenfields)” means any premises used or intended for use for the sale, or displaying or offering for sale, by retail, of goods where: (a) the activity is conducted within the premises constructed substantially in accordance with the layout depicted on Drawing No. 6577Lc; and (b) the area of any tenancy as defined in the Plan of Development – Appendix “A” is not less than that shown on the “Building Schedule” box as depicted on Drawing No 6577LC; and (c) the goods for sale, or displayed or offered for sale, are any of the following: (i) floor coverings, wall tiles, soft furnishings or bedding; (ii) furniture and dècor; (iii) non-portable domestic appliances being washing machines, dishwashers, clothes dryers, refrigerators, hot-water systems, air-conditioning systems and the like, with or without portable domestic appliances; (iv) building and constructions materials, fixtures & fittings with or without hardware; (v) fabrics, craft supplies and textiles; (vi) BBQs, camping goods or outdoor recreation goods; (vii) sporting equipment; (viii) toys; (ix) electronic communications and computing hardware, software and accessories; (x) motor vehicle accessories and parts. The term includes any ancillary use (as defined in this Plan of Development) of the premises. The term does not include any premises which are primarily dedicated to the sale of food, factory seconds and fashion (including shoes, jewellery and accessories). [8] The applicant’s mode of attack upon the proposal’s conformity with the Plan of Development was based on an examination of the mode of operation of other established Bunnings outlets and the goods available at those facilities. An -- 5 of 9 -- 6 affidavit from Mr Porter exhibited a copy of the store directory of the Bunnings Warehouse at Carseldine which includes a floor plan of the premises and a list of products which are available in its various departments. It was asserted that, in all probability, a similar range of goods would be made available at the proposed Bunnings establishment at Mackay. The applicant’s case went on to contend that many of the items that are presently available at existing Bunnings outlets do not come within the ambit of sub-clause (c) of the definition. [9] From that material, the applicant extracted (and set out in Schedules 1 and 2 to the amending originating application) items about which declarations were sought to the effect that the offering for sale of these items would take the proposed development outside the definition and make it one which required impact assessment. [10] If one were to be overly technical about the matter it might be said that relief is sought on a somewhat hypothetical basis at this stage. The relevant building is not yet constructed or occupied and while it would not be suprising that Bunnings, in this operation, followed patterns adopted elsewhere, Anneke Jones pointed out:- “The layout map and list at Exhibit K to Mr Porter’s affidavit in these proceedings is indicative of the types of products proposed to be sold from and the layout of the proposed Bunnings Mackay facility. Not all goods are sold at all stores. The exact product mix depends upon the market both at the time of establishment and during operation”. [11] Even if the applicant was correct in the contention that some items typically sold by Bunnings fell outside sub-clause (c) of the definition, I doubt whether I would be prepared to grant declaratory relief that would stand in the way of the issuing of the relevant development permit and the commencement of any operation. If it emerged that items were being offered for sale in a way that offended the definition -- 6 of 9 -- 7 it would, in my view, be an appropriate matter for enforcement proceedings to take place. [12] However it does not come down to that. I am satisfied that the applicant’s case is based on too narrow a construction of the definition. Its argument pre-supposes that sub-clause (c) (items (i) to (x)) is an exhaustive statement of what goods may be offered for sale at the premises. [13] As is made clear in clause (c) of the Plan of Development the definition has been drawn for the specific purpose of this proposal. The definition of “Showroom- General (Greenfields)” in the transitional planning scheme is not applicable. Items (i) to (x) are a very wide application and can sensibly be seen as an attempt to cover the stock of a warehouse-type operation that would attract custom from those concerned with home or building construction, decoration and maintenance. These matters relate not only to the structures themselves, but also to their surrounds which opens the way for the inclusion of gardening and landscaping items ancillary in that context. [14] Importantly, sub-clause (c) contains the provision that “ancillary uses” as defined in the Plan of Development are to be included. The relevant definition is:- “‘Ancillary Use’ refers to a use which is associated with but incidental and subordinate to the use of a premises for Showroom- General (Greenfields) (as defined by this Plan of Development)” It is noted that the word “necessarily” which is generally encountered (as qualifying “associated”) in definitions of this kind, is not included here. In my reading of the definition it is clear enough that the proposal is contemplated as a large warehouse-style operation where the focus is upon building construction, maintenance and decoration. In the ordinary course of contemporary marketing -- 7 of 9 -- 8 practice, operations of this kind find that people drawn to such a facility are also interested in acquiring (“in a ‘one-shop-stop’exercise”) other items which may not strictly fall within the descriptions given in (i) to (x). To offer such items for sale would not, in my view, offend the definition in that this should be seen as an ancillary use of the premises being incidental and subordinate to their contemplated use as described above. [15] It is well established that in matters of this kind a pedantic or overly technical approach is not warranted (Waringah Shire Council v. Jennings Group Ltd 1992 75 LGRA 402; Shire of Perth v. O’Keefe 1964 LGRA 147). I am not satisfied that the probable mode of use of these premise by Bunnings would justify declaratory relief indicating that such development would require impact assessment. [16] There is the further matter of the Court’s discretion to grant the relief sought. Importantly in this case is the stated attitude of the respondent council which is included in Exhibit 1 and which was confirmed by its counsel, Mr Everson, who informed me that his instructions were that the council was of the opinion that the proposed use did not offend the definition and was worthy of development approval. [17] Clause 2.1(3) of the Transitional Planning Scheme provides:- “Where there is any question about the definition of any use or proposed use, the definition of such use shall be as determined by council having regard to the nature and scale of the use and its likely impacts on surrounding areas and the environment”. [18] Counsel for the applicant referred me to a decision of Her Honour Judge O’Sullivan in Russell v. Pine Rivers Shire Council & Ors 1996 QPELR 241 where Her Honour was dealing with a clause in a town planning scheme which provided:- -- 8 of 9 -- 9 “any question as to whether a use or a proposed use is contained within a definition or a class of use is defined in this part shall be determined by the council.” For reasons which she explained, Her Honour stated:- “I consider that clause (iii) does not mean that Pine can rely on it to approve a use as being within a definition in a scheme when it is clearly not so”. [19] Clause 2.3 is somewhat differently drawn. In my view the proposal does not represent a clear departure from the Plan of Development and the present case is a good example of what clause 2.1(3) is intended to cover. [20] On the material before me I am well satisfied that the probabilities are that, in deciding to issue the relevant development permit, the council would exercise the power which this clause gives in favour of Bureya and that is a factor which would strengthen my disinclination to make the declaration sought. [21] In all of the circumstances I find that the onus of showing that the declaratory relief sought should be granted has not been discharged and the application must therefore be dismissed. -- 9 of 9 --