Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPEC 1 (2000) QPELR 193

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Bunnings Buildings Supplies Pty Ltd v Redland Shire Council & Ors [2000] QPE 001 PARTIES: BUNNINGS BUILDING SUPPLIES PTY. LTD. REDLAND SHIRE COUNCIL GARY SKILLEN AND LORRAINE SKILLEN AND OTHERS FILE NO/S: 3391 of 1999 DELIVERED ON: 12 JANUARY 2000 DELIVERED AT: BRISBANE HEARING DATES: 13, 14, 16 AND 17 DECEMBER 1999 JUDGE: SKOIEN S.J.D.C. ORDER: APPEAL DISMISSED CATCHWORDS: Planning principles; Amenity; Traffic; Material change of use. COUNSEL: Gallagher Q.C. and Cochrane for appellant; Ure for respondent; Kelliher (agent) for respondents by election. SOLICITORS: Kinneally Mahoney for appellant King & Company for respondent McCarthy Durie Ryan Neil for respondents by election 1. This is an appeal against the failure of the Council to decide within the statutorily specified time an application by Bunnings for a development permit for a material change of use and reconfiguration of a lot for the purposes of a 12,800 m2 "Bunnings Warehouse" hardware store and associated ancillary facilities. The application was lodged with the Council in November 1998 and proceeded through the normal statutory steps including public notification (in February 1999 with submissions closing on 26 March 1999). Negotiations between Bunnings and the Council were inconclusive and the Council having failed to reach a decision on the application a notice of appeal against that failure was filed on 27 August 1999. The Site 2. The site contains about 3.17 hectares and is roughly rectangular in shape, measuring about 190 m. by 135 m. Its long axis lies approximately north/south. It is located on the north west corner of the Finucane Road/Old Cleveland Road and Old Cleveland Road East/Moreton Bay Road intersection. Those roads form a major intersection with Finucane Road/Old Cleveland Road running approximately east/west while Old Cleveland Road East/Moreton Bay Road run approximately north/south. These are major arterial roads. The site is bounded to the south and east respectively by Old Cleveland Road and Old Cleveland Road East. The southern end of the site borders two commercial properties which form indentations to the site. The western boundary adjoins development which includes a service station, a shopping centre and a residential property. The site’s northern boundary is Brewer Street, a residential street. 3. The site falls gradually from the north eastern corner to the south west corner by about 7 metres. A partially constructed road (Anderson Street) provides access to the site from the west (from Old Cleveland Road) as well as to the commercial development on Old Cleveland Road adjoining the site’s western boundary. 4. Commercial activities have previously been developed on the southern portion of the site (2.17 hectares). The remaining northern portion (1 hectare) is largely cleared, with a number of remaining scattered mature trees and the remnants of nine demolished dwelling houses which formerly fronted Brewer Street. Bunnings purchased those nine residential allotments before making the application to the Council and then demolished the houses which stood on them. I will refer to these two portions as the "commercial portion" and the "residential portion" of the site. The commercial portion is zoned Comprehensive Development and the residential portion is zoned Residential A. The Locality 5. Brewer Street is a residential cul-de-sac which has a single access point to Old Cleveland Road East. It gives access to four other residential streets all of which are themselves cul-de-sacs. All told this area, -- 1 of 6 -- which I will call the Brewer Street precinct, contains about 75 detached dwelling houses. Brewer Street has an interesting physical appearance which reflects topographical features and contains a series of curves which, along with the existence of a number of mature trees, provide quite an attractive streetscape. Brewer Street was previously developed along both road frontages for residential dwellings but now, of course, its southern frontage adjacent to Old Cleveland Road East is to the nine allotments on which the houses have been demolished. 6. On the north east corner of the intersection, that is across Old Cleveland Road East from the site, is an area which has been included in the Major Centre designation of the Strategic Plan. It has not yet been developed commercially. Proceeding east along Old Cleveland Road East, opposite the commercial portion of site, the designation is for Medium Density Residential and has been developed accordingly and quite attractively. Still further to the east, opposite the residential portion of the site the designation is Urban Residential and it also has been quite attractively developed with detached housing. The south west and south east corners of the intersection are designated Major Centre and have been developed commercially. Thus the intersection itself is both designated and very substantially developed as a major commercial centre. The Application 7. The essential part of Bunnings' application concerns the construction of a retail hardware warehouse which is to measure 144 m. by 70 m. and to stand about 11 m. high. Its long axis is to lie approximately north/south. At its northern end, that is, within the residential portion of the site fronting Brewer Street, a retail plant nursery is planned. It is to be in the standard Bunnings shape, which presents as a large rectangular blue/green building on which the Bunnings logo and name are conspicuously displayed. 8. Bunnings intends to provide road access to the site from Cleveland Road East approximately half way along the frontage of the site to that road. The car park (providing 347 parking spaces which is more than the number actually required by the Council) will extend for the full length of that frontage. 9. Extensive landscaping is proposed both within the car park and along the Brewer Street frontage, for about half of which the depth of landscaping is to be 24 m., the balance having a depth of 6 m. Strategic Plan 10. The commercial portion of the site (2.17 hectares) is within the area designated Major Centre on the Strategic Plan Map. The northern portion (1.1 hectares) is designated for Urban Residential purposes. 11. The Strategic Plan states, under Section 4.2.1 of the Preferred Dominant Land Use Intents in respect of urban residential land, that whilst - "residential uses will dominate, certain non-residential support facilities which provide local services to residents of an area may be contemplated in certain appropriate locations and subject to detailed development requirements which are designed to achieve a satisfactory form of development compatible with residential living. These facilities may include community support services such as local shopping developments, medical centres, churches, child care centres, educational facilities and the like." 12. In s.4.3 the Strategic Plan also states that where development in the Urban – Employment and Services Oriented designation (which includes the Major Centre designation):- "adjoins areas of existing or future residential development, the height, bulk, orientation and design of development and the treatment of signage, lighting, car parking, points of ingress and egress, landscaping, fencing and buffering will be required to provide for the reasonable protection of the amenity of the adjoining residential development." 13. In their written submissions, counsel for Bunnings have directed me to s.4.3.1 of the Strategic Plan which emphasises that the Major Centre designation is intended to accommodate the Shire’s major retail and commercial activities. I was directed to s.3.4 which identifies goals aimed at increasing local employment opportunities throughout the Shire with particular emphasis on the Capalaba Business Centre. They also -- 2 of 6 -- referred me to s.3.4(e) which states the importance of providing appropriate buffers to surrounding areas in order to protect the amenity of those areas. Draft Development Control Plan No. 4 – Capalaba Business Centre 14. A Draft DCP for the area which includes the site has been adopted by Council and has been on public display. Because of a number of particular circumstances (in particular the desire to incorporate the recommendations resulting from the Capalaba Bus Station and Bus Priority Lane Study and rationalisation of the application of infrastructure charges) the DCP remains un-gazetted. None of those circumstances threatens the basic thrust of the DCP and so it (and its planning study) provide substantial guidance with respect to the general planning intentions for the site. See Lewiac Pty. Ltd. V. Gold Coast City Council (1994) 83 LGERA 224 at 248, per Thomas J. 15. The planning study for the DCP identifies the boundaries established by the DCP, one of which co-incides with the junction of the commercial portion and the residential portion of the site. The commercial portion of the site is designated Showroom and Industry Area within which, the DCP states, industrial and commercial land uses and developments which cater directly to the public and require good road exposure, large showroom facilities and well presented property and building street frontages are intended to be accommodated. 16. The Redlands Shire Planning Scheme is a transitional planning scheme. Bunnings’ application must, therefore be decided pursuant to section 6.1.30 of the Integrated Planning Act 1997 which requires (s.6.1.30(3)(a)) that the application be decided under s. 4.4(5) and (5A) of the Local Government (Planning and Environment) Act 1990. That would have involved an application to re-zone the residential portion of the site to a commercial use. It would also have involved an application for the Council’s consent in respect of the entire site after that re-zoning. On this point I accept the submissions of Mr. Ure for the Council that the use is properly characterised as either a Showroom Class A or a Shop under the Planning Scheme. Such uses are prohibited for the Residential A zone (hence the need for the re-zoning to Comprehensive Development zone for the residential portion) and such uses require Council consent even within the Comprehensive Development zone. 17. Section 4.4(5A) of the P&E Act provides that: "The local government must refuse to approve the application if – (a) the application conflicts with any relevant strategic plan or development control plan; and (b) there are not sufficient planning grounds to justify approving the application despite the conflict." The Issues 18. The issues in the case can be summarised under the headings of planning principles, need, traffic and amenity. Flooding was canvassed briefly in the evidence but was not pursued and indeed the evidence was clear that the development would not cause any flooding. So it need not be referred to further. I propose also to discuss the effect of some options to purchase which Bunnings obtained from certain local residents. Planning Principles 19. The relevant sections of the Strategic Plan, the draft DCP and the P&E Act have been referred to. I did not understand Mr. Gallagher Q.C. for Bunnings to argue that, at least so far as the residential portion of the site is concerned, there was no conflict between the application and the Strategic Plan. Rather the argument was, that under s.4.4(5A)(b) of the P&E Act there are sufficient planning grounds to justify approving the application despite the conflict. 20. The consultant town planner called by Bunnings, Ms. Vigar advanced five reasons to justify the application. They were (summarised by me): a. That the access to Old Cleveland Road East was preferable to access to Brewer Street; b. That the proposed landscaping to Brewer Street would protect the amenity of the Brewer Street precinct; c. That the application would have the desirable effect of shifting the junction between the Comprehensive Development (i.e. commercial) designation and the Urban Residential designation to a street (Brewer Street) instead of its current junction at the rear of residential allotments on the southern alignment of Brewer Street; -- 3 of 6 -- d. That the proposal in any event falls within the description of providing local services to the residents of the Brewer Street precinct and is thus expressly contemplated as proper development by the Strategic Plan (see para (11) above). e. That there is a need for the proposed Bunnings Warehouse. 21. Taking these points in turn – a. This argument contains a logical fallacy. It simply points out that if the application provided for a different access things would be worse. That cannot be a planning ground which positively supports the application. b. I am satisfied that even if the landscaping which is proposed by Bunnings were established and maintained to optimum standards, the objective assessment of any user of Brewer Street (or indeed of Old Cleveland Road East in the vicinity of the site) would recognise the presence of a very large commercial use (building and car park) on the site at the Brewer Street frontage. Even allowing for different sight lines from different points, trees up to 5 m. in height cannot effectively shield a building 11 m. high. That is aggravated by the fact that the north east corner of the site would be considerably below the level of the Old Cleveland Road East/Brewer Street intersection. Even if complete screening were achieved I think it highly probably that the subjective assessment of residents would recognise the presence of a commercial building. So both objectively and subjectively the residential amenity would be degraded. i. In my opinion to move the junction between the commercial and residential uses north from its present position to Brewer Street would not constitute good planning. Any commercial development on the commercial portion of the site should be required, in accordance with the Strategic Plan (see para (13) above) to provide an appropriate buffer to the residential land to the north. Because that residential land is now undeveloped (thanks to the demolition carried out by Bunnings), there is the opportunity for it to be developed sensitively to minimise any clash with the commercial use. Buildings can be sited well to the north; they can turn their backs on the commercial building; they can use landscaping to their rear to provide their own buffer. To the contrary, to move the boundary to Brewer Street would confront the residents on the northern side of that street with a large commercial use which (as I have found in sub-paragraph (b) above) could not adequately be screened. ii. Ms. Vigar was of the view that to move the boundary to Brewer Street would be an improvement on the planning for the area by the elected local government as exemplified in the Strategic Plan and the draft DCP. I reject that approach. It is not the role of this court to usurp the function of the planning authority. (See Security Projects v. Hollingsworth (1975) 62 LGRA 319, Elan Capital Corporation v. BCC (1990) QPLR 209 at 211, Pacific Exchange v. Gold Coast City Council 1998 QPLR 335, Kehoe Myers v. Toowoomba City Council 1997 QPLR 291). c. I am quite unable to regard the Bunnings Warehouse as a "non-residential support facility which provides local services to residents of an area". I refer there to the Warehouse as a whole, not merely to that part, namely the nursery and a small portion of the hardware section, which protrude into the residential portion. To do otherwise would be to ignore the real nature of what Bunnings wish to create on the site. It is at least a sub-regional facility (exhibit 3 para 4.1.7 and exhibit 4, figure 4). As Mr. Ure graphically pointed out, the building is to have a length and breadth one and a half times the length and breadth of a football field. And in reaching this conclusion I am aware of statements regularly made in this court that developments providing local services to the residents of an area should not be read restrictively so as to prohibit, in a proper case, facilities having a quite wide area of influence. See, for example, Craig v. Brisbane City Council & Anor. (1998) QPELR 281; Phil Fletcher Planning and Investment Services Pty. Ltd. V. Brisbane City Council (1991) QPLR 16. In this case the application is not for a small non-residential facility which, wherever it is situated, will not just fulfil a need for the local residents but which must of necessity attract people from outside the immediate area as well (e.g. a service station, or a church). It is for a very large retail facility the local customers of which would be a mere handful. While it may literally provide a local service to them, to regard this warehouse as falling within the scope of s.4.2.1 of the Strategic Plan simply flies in the face of reality. d. Need, in planning terms is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community. See for example -- 4 of 6 -- Fitzgibbon Hotels Pty. Ltd. v. Logan City Council (1997) QPELR 208 at 213. So to provide competition and choice where there is none in existence could be the filling of a need. In this case Bunnings has a virtually identical warehouse at Cannon Hill, a short drive away from the site. Capalaba itself has a 9600 m2 BCC major hardware store. Hardware is also available in Capalaba on a substantial basis from a Big W and a K Mart. On all of this evidence I remain unsatisfied that need has been established. I am mindful of the statement of Carter DCJ in William McEwans Pty. Ltd. V. Brisbane City Council (1982) 2 APA 165 at 170 in these terms:- "It should not, in my opinion, be thought that a rezoning can be justified by merely contriving a need which is, essentially, nothing more than exercise in entrepreneurial skill, the effect of which is to give the applicant some commercial advantage. Nor will land be rezoned in favour of the entrepreneur who seeks to create the need by the use of his land in the manner he desires. The basic assumption must be that there is an existence at the time of the applicant a latent unsatisfied demand on the part of the persons affected by the Planning Scheme which is not being met at all, nor being adequately met by the Scheme in its present form." 22. Thus, I do not accept that there are any planning grounds to justify the application despite its clash with the Strategic Plan. That conclusion may well be sufficient to dispose of the appeal, but it is appropriate to deal in turn with the other disputed issues. Traffic 23. I accept the evidence of Mr. Brammeld that the proposed access to the site would create traffic difficulties. The access is to be provided with traffic lights. On the evidence (see exhibit 30), once that is done, it is more probable than not that the Brewer Street intersection with Old Cleveland Road will never have traffic lights installed but that a median strip will be built in Old Cleveland Road East which will make Brewer Street a "left in, left out" intersection. That is not the case now, motorists from Brewer Street being permitted to turn right into Old Cleveland Road East and southbound motorists on Old Cleveland Road East being permitted to turn right into Brewer Street. Should those manoeuvres be deemed too dangerous, the probabilities are (absent the Bunnings development) the installation of traffic lights at the intersection to control the manoeuvres. 24. However given the presence of the Bunnings development with its traffic light controlled access and the consequent probable installation of the median strip in Old Cleveland Road East, motorists exiting Brewer Street and intending to drive south will have to proceed north at least 200 m. to make a U turn. That would not only be annoying to the motorists but the U turn could be dangerous and for a large vehicle, difficult. And motorists driving south on Old Cleveland Road East would not be able to turn right into Brewer Street but would have to undertake a considerably more convoluted path. 25. Those difficulties, while undoubtedly relating to matters of traffic and road safety, also amount to another substantial degradation of the amenity of the occupants of the approximately 75 residences in the Brewer Street precinct. 26. There was a deal of discussion about the possibility of the extension of Anderson Street through the site along the junction of the commercial and residential portions, to Old Cleveland Road East. That is a mere possibility and I have put no weight on it in reaching my decision. I would, however, make the observation that while the status quo is preserved the possibility exists; the construction of the Bunnings Warehouse would obliterate that possibility. Amenity 27. For the reasons given in paragraphs (21(b)) and (23)-(25) above, the application, if successful, would seriously degrade the amenity of the residents of the secluded and rather attractive Brewer Street precinct. In reaching that conclusion I was assisted by the evidence of the two planners Mr. Curtis and Mr. Jackson. It is noteworthy that the many submissions which were received from the Brewer Street precinct residents, heavily opposed the application. I also observe that in considering the amenity of Brewer Street I have -- 5 of 6 -- notionally viewed it with residences in place on the nine allotments purchased by Bunnings, that is, as it was described in evidence before the demolition of the houses. A developer cannot purchase land in an area, degrade that land, and then ask the court to judge the amenity of the area in its degraded state. Purchase Options 28. Bunnings approached a large number of local residents and for a small sum of money, obtained from many of them the option to purchase their residences at ridiculously high prices. It seems to have been a case of "vendor name your own price" and on the examples I was given the price was of the order of twice the realistic price. 29. None of the options was ever taken up. Each option contained a clause whereby the resident agreed not to object to the Bunnings’ application. Despite the statement of Mr. Milburn, Bunnings’ State Operations Manager (exhibit 25, para. 44) that the reason for the inclusion of that clause was simply to "ensure that no owners could seek to apply leverage on Bunnings for personal gain in the application process", I am driven to the conclusion that there was never any intention to buy any of the properties and the real reason for each option was to gag potential opposing submitters. It seems that the ploy was very largely successful despite the later opposition to the Bunnings application by some of the option givers. 30. An integral part of the development application process is the public notification of the application to give interested parties the opportunity to make a submission in relation to it (or under the P&E Act, to object). The reason for this is obvious. The Council should have the opportunity to assess the application in the light of the informed attitude of interested parties, especially local residents and most especially those living closest to the site who would be most closely affected. That informed attitude may very well be perverted by a developer who uses the cheque book. Human nature being what it is, what resident might not be persuaded to overlook the effect of the application on the neighbourhood, as truly perceived by him, if offered the prospect of selling up for twice his property’s value and leaving the neighbourhood? 31. The fact is that here the Council was not given the assistance of learning the informed attitude of a large number of the residents of the neighbourhood, indeed those most likely to be most intimately affected by the application. The fact that by the time the matter came on appeal some of them, by then free of the gag, voiced their real feelings went only very slightly to undo the mischief. 32. In this case the cheque book approach to potential submitters has not affected the merits of the various arguments on the disputed issues. I take the opportunity, however, to deplore it in the strongest terms. Should this approach manifest itself in other applications, the court will have to examine the ramifications in detail. Could it have the effect of vitiating the public notification stage, requiring re-notification? Might it amount to an abuse of process? Conclusion The appeal is dismissed. -- 6 of 6 --