PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005 PARTIES: MELVYN WILLIAM LUKE COOLUM BEACH PROGRESS AND RATEPAYERS ASSOCIATION INC STEWART HEIL CHRISTINE HOGAN MATTHEW ARNOTT ALEXA HELENE ARNOTT ADAM JOHN ARNOTT STORM RICKARD ROSS & VICKI RICKARD ROD & LYNETTE HOLT MR & MRS JAMES MR M MAGRI & MISS K BURSAC J T & L J BARNS & ORS NOLEEN JOYCE CLARK GREGORY & KAREN WIDDISON DEBBIE RYAN TERRI RAE MICHAEL RAE CHERYL COOK R COOK MICHAEL GEORGE ROD HOLT MICHAEL HARTE v Appellants

2 THE COUNCILOF THE SHIRE OF MAROOCHY Respondent and WATPAC DEVELOPMENTS PTY LTD Co-respondent 2 FILE NO/S: Appeals Nos. 15/2002, 17/2002, 18/2002, 19/2002, 20/2002, 21/2002, 22/2002, 23/2002, 24/2002, 25/2002, 26/2002, 28/2002, 29/ /2002, 31/2002, 33/2002, 34/2002, 35/2002, 36/2002, 37/2002, 38/2002, 39/2002 & 40/2002 DIVISION: PROCEEDING: ORIGINATING COURT: Planning and Environment Court Appeals DELIVERED ON: 10 March 2003 DELIVERED AT: Southport HEARING DATES: JUDGE: ORDER: CATCHWORDS: Maroochydore Planning and Environment Court 18, 19, 20, 21, 25, 26, 27, & 28 November, and 2 & 4 December 2002 Alan Wilson SC, DCJ Appeals dismissed PLANNING AND ENVIRONMENT CONFLICT WITH PLANNING SCHEME application for shopping centre and supermarket land apparently designated for residential development in planning scheme whether conflict with planning scheme whether sufficient planning grounds to approve development, despite conflict PLANNING AND ENVIRONMENT PLANNING SCHEMES CONSTRUCTION OF PLANNING SCHEMES planning scheme to be read as a whole weight to be given to various parts of planning scheme Integrated Planning Act 1997 Maroochy Plan 2000 Acts Interpretation Act (1954) s 14A Cases considered: Alberton Investments Pty Ltd v Brisbane City Council (1999) QPELR 360 All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155 Arksmead Pty Ltd v Gold Coast City Council (1999) QPELR 322, at 330 (affirmed on appeal: (2000) 107 LGERA 60)

3 Barcoo Pty Ltd v Crows Nest Shire Council (1987) QPLR 242 Bell v Noosa Shire Council (1993) QPLR 311 Body Corporate Greatwood CTS v Maroochy Shire Council (2001) QPELR 293 Bower v Brisbane City Council (1990) QPLR 130 Broad v Baptist Union (1986) 2 Qd R 317 Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 Burmah Fuels (Qld) Pty Ltd v Redland Shire Council (1995) QPLR 103 Castro v Douglas Shire Council (1992) QPLR 146 Craig v Brisbane City Council (1998) QPELR 281 Dalgety Australia Pty Ltd v Brisbane City Council (1981) APAD 340 Degee & Anor v BCC (1988) QPELR 287 Delaview Pty Ltd v Redland Shire Council (1997) QPLR 250 Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141 Elan Capital Corporation v Brisbane City Council (1990) QPELR 209 Fitzgerald v Logan City Council (1993) QPLR 56 Grosser v Gold Coast City Council (2002) 117 LGERA 153 Harburg Investments Pty Ltd v BCC (2000) QPELR 313 Hervey Bay Projects v Hervey Bay City Council (1993) QPLR 104 Holts Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR 415 Intrafield v Redland Shire Council (2001) 116 LGERA 350 Kangaroo Point Residents Association v Brisbane City Council (2001) QPELR 321 Labrador Printing Co Pty Ltd v Albert Shire Council (1995) QPLR 166 Landel Pty Ltd v Redland Shire Council (2000) QPELR 60 Lend Lease v Maroochy Shire Council and Tallenbrook Pty Ltd [2002] QPEC 40 Mitchell v Rockhampton City Council (1982) QPLR 175 Neale v Maroochy Shire Council (2000) QPELR 272 Nordale Management Pty Ltd v Maroochy Shire Council (1995) QPLR 368 at 370 Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335 Pacific Seven v City of Sandringham (1982) VR 157 Patterson v Hervey Bay City Council (1989) QPLR 184 Phil Fletcher Planning and Investment Services v Brisbane City Council (1991) QPELR 16 Playfair v Maroochy Shire Council (1991) QPELR 87 Prime Group Realty v Brisbane City Council (1995) QPELR 173 Prime Group Properties v Caloundra City Council (1995) QPLR 147 3

4 Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143 Real Property Consultants Pty Ltd v Brisbane City Council (1999) QPELR 455 Queensland Adult Deaf and Dumb Society v Brisbane City Council (1972) 26 LGRA 380 R v BCC ex parte: Read (1986) 2 Qd R 22 SEAQ v Warwick City Council 24 LGRA 391 Sheezel v Noosa Shire Council (1980) QPLR 130 Skateway Pty Ltd v Brisbane City Council (1981) APAD 417 Stradbroke Island Management Organisation v Redland Shire Council (2002) 121 LGERA 390 Telstra Corporation Limited v Pine Rivers Shire Council (2001) QPELR 350 Town of Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161 Vynotas Pty Ltd v BCC (2001) QPELR 14 Weightman v Gold Coast City Council (2002) 121 LGERA 161 Wingate Properties Pty Ltd v Brisbane City Council (2001) QPELR 272 Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 ZW Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 Qd R COUNSEL: Mr S Ure for the appellant in appeal no 15/2002 Mr C Hughes SC for Council of the Shire of Maroochy in all appeals Mr J Gallagher QC and Mr Rackemann for the co-respondent in all appeals Mr L Manning, solicitor, for six appellants SOLICITORS: Butler McDermott & Egan for the appellant in appeal no. 15/2002 Lestar Manning for the appellants in appeals nos. 23/2002, 29/2002, 34/2002, 35/2002, 36/2002 & 37/2002 Maroochy Shire Council Solicitor for the respondent in all appeals Connor O Meara for the co-respondent in all appeals APPEARANCES BY OR FOR LAY APPELLANTS: Mr Peter Brown and Dr Koerner for the appellant in appeal no. 17/2002 Mrs Christine Hogan for herself in appeal no. 19/2002, and for the appellants in appeals nos. 18/2002, 20/2002, 21/2002, 22/2002, 25/2002, 26/2002, 28/2002, 31/2002, 33/2002, & 38/2002 Mr Harte for himself in appeal no. 40/2002 and the appellant in appeal no. 30/2002

5 5 [1] These appeals, which were heard together, were brought by adverse submitters against Maroochy Shire Council s decision of 3 April 2002 to approve the corespondent s application to develop a shopping complex, with a supermarket, in the western part of Coolum Beach township. At present, Coolum has only one small supermarket and, while it is generally agreed another is desirable, its location is a matter which has aroused considerable interest amongst the town s inhabitants. [2] The co-respondent bears the onus of establishing the appeals should be dismissed: Integrated Planning Act 1997 (IPA) s (2). Coolum Beach [3] Coolum is a Sunshine Coast seaside town with, presently, a permanent population of about 13,500, principally housed in detached dwellings and unit accommodation. The population increases significantly during holiday periods. The town s topography is relatively simple: on the eastern side it faces the Pacific Ocean, and its western boundary is effectively defined by the Sunshine Motorway. It is divided, on an east-west axis, by the Yandina/Coolum Road. South of that road the distinguishing feature is a large ridge running northsouth, parts of which are called, variously, Coolum Hills or Toboggan Hill. On the eastern, beach side of that ridge most properties have ocean views, while on the western slopes the hillside housing enjoys an attractive lookout over the cane fields in the Maroochy River valley, to the Blackall Ranges. The land [4] The subject land is on South Coolum Road and faces west, at the outer western edge of existing urban development beyond which the land, in the Coolum- Yandina Valley, remains largely rural in character save for the vivid presence of the motorway. The site is flat, and vacant and largely devoid of vegetation, and lies at the base of the amphitheatre formed by the western slopes of Coolum Hills, and a spur which runs west from them, down to South Coolum Road. It has a disturbed lumpy surface as a consequence of earlier earthworks. The land is not attractive but at the same time not, for those in what one witness

6 called the view shed, (i.e. the hillside amphitheatre to the west, south-west and south) presently intrusive. [5] It lies a short distance south of the point at which the Coolum/Yandina Road enters the town from the west, after a crossing at the Sunshine Motorway. Vehicles travelling along that road towards Coolum enter the town at a roundabout at which the Coolum Primary School lies to the north, on their left; the road to the beach is directly ahead to the east; and South Coolum Road travels away, to the south, roughly parallel to the Sunshine Motorway in the general direction of Maroochydore. On the south-eastern corner of that intersection, which is a roundabout, is a small convenience-type shopping centre. Further south on South Coolum Road are some small industrial premises, opposite a council depot and one private property at the edge of cane fields which still exist between South Coolum Road, and the motorway. The site is just south of a small street called Greenoaks Drive, and a commercial/industrial premises lies between them. The land separates these obvious commercial uses from the dwellings on the slopes, and around the base, of the amphitheatre. [6] The whole parcel is presently described as Lot 115 on SP , and contains hectares. Under the co-respondent s proposal it would it be reconfigured into three allotments: one containing hectares, to accommodate the proposed shopping centre; a second, to the south, containing 7,656m 2 which is to be dedicated for public parkland; and the balance allotment, mostly to the east and south-east, containing hectares. It is presently approved for standard residential allotments; but, in part, is the subject of an application for an aged care facility (on the 3ha parcel which will then, if allowed, intrude between this site and the homes of some objectors). [7] The proposed complex would be separated from existing residential development to the south, around Magenta Street, by the proposed parkland. It would also be separated from residences to the east in Bluegum Court, Edith Place, and Learg, Ashvale, Munga, and Meelgan Streets, by the balance of the lot and ultimately, perhaps, by the proposed aged care facility. 6

7 7 The Application [8] The development approval granted on 3 April 2002 is for a shopping complex. It involves a development permit for a material change of use of premises (shopping complex supermarket not exceeding 2,800m 2 GFA [gross floor area]), and specialty shops not exceeding 1,200m 2 GFA; another development permit to reconfigure one lot into three; and, preliminary approvals for operational (filling) engineering works and landscaping, and building works. [9] An earlier application lodged on 6 April 2001 sought a larger complex with a GFA of 5,900m 2, and a supermarket of 3,000m 2 but, in October 2001 Council s Planning Officer recommended refusal of it. The co-respondent lodged the present, reduced application on 11 February The earlier application required statutory public notification which drew 751 submissions, of which 367 were in favour, and 384 against. There was also a petition against the development, containing 907 signatures. [10] The second application was not required, by Council, to be the subject of further public notification and some of the appellants raised that as an issue in these appeals without, however, attempting to adduce any evidence touching Council s jurisdiction to make the decision it did. The amended proposal was, on any view, considerably smaller and less intrusive than the initial one. The issue of public notification was one for Council to determine in the course of the application process. Its decision cannot be overturned by this Court if it was reasonably open 1 and, so far as the matter is in issue, I am satisfied the decision was open to the Council and, indeed, correct 2. [11] In any event I am satisfied all interested residents had ready access to information which could keep them aware of the progress of, and changes in, the development. The co-respondent had, at material times, a staffed site office open to the public; conducted two open days; consulted a number of community organisations, and attended local community meetings; held meetings on site with residents and stakeholders; held public meetings; and, by a variety of 1 2 Kangaroo Point Residents Association v Brisbane City Council (2001) QPELR 321, at 323 Professor Brannock s report, Exhibit 8, paras & 4.3.4; Mr Chenoweth s report, Exhibit 12, para 6.3.8; Mr Beard s report, Exhibit 11, para 2.3; Mr Sheehan s report, Exhibit 14, s2; Mr Covington s report, Exhibit 15, para 2.0.1

8 means, attempted to meet and discuss the issues raised by the community, at these meetings, and in the media 3. [12] Council s approval of the shopping centre was subject to 44 conditions including requirements that the co-respondent pay monetary contributions towards the provision of bike-ways and bicycle facilities; another monetary contribution of $208, towards the investigation and improvement of the Coolum Road network; a further contribution of $40, towards the relocation of the pedestrian crossing at the primary school; and a community benefit contribution of $100, The conditions also contained stringent requirements about landscaping, building heights, and measures to minimise any potential problems with noise, light etc. 4 8 The Issues [13] The various issues raised by the appeal notices, and the evidence, may be collected under four heads: (a) (b) (c) (d) community need and benefit; consistency, or conflict with the Planning Scheme; if the proposal is in conflict with the Planning Scheme, the question whether there are, or are not, sufficient planning grounds to justify approval notwithstanding that conflict; questions of amenity including noise, light, traffic, flooding and visual amenity; and, the reasonable expectations of local residents. [14] Ultimately, because the parties agreed there is an existing need for a larger supermarket in Coolum, much of the evidence addressed these issues in a way which involved debate whether that need should be met through a supermarket at this site, or elsewhere in Coolum; and each resorted to the Planning Scheme (Maroochy Plan 2000 Exhibit 6) in detail for support for the rival contentions that this development was not in conflict with the scheme; or that the scheme 3 4 See the Appeal Book (Exhibit 19) at pp , & 403 Decision Notice - Exhibit 19, vol 2, pp

9 did not countenance this development in this area, and required that any new supermarket be in Coolum s village centre, over near the ocean; or, elsewhere. [15] While all the appellants argued the proposal was in conflict with the Council s Planning Scheme, only one group 5 submitted that it also offended, or was compromised by, the Desired Environmental Outcomes (DEOs) for the Planning Scheme area. Under the IPA, s (2): (2) If the application is for development in a Planning Scheme area, the assessment manager s decision must not (a) compromise the achievement of the desired environmental outcomes for the Planning Scheme area; or (b) conflict with the Planning Scheme, unless there are sufficient planning grounds to justify the decision. [16] It was submitted, for these appellants, that approval would offend DEO No. 3 of the Planning Scheme 6 which, under the general heading The Vision indicates that the shire aspires to economic sustainability, a wish expressed in these terms: 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, whilst diversifying this base in a manner consistent with the shire s character and the sustainable use of the shire s resources. This includes having an optimal amount of good quality agricultural and other productive rural land in a form which maximises its productive use, consistent with the community s need for other uses and the availability of other suitable land for those uses. It also includes Maroochydore fulfilling its role as a Key Regional Centre, complemented by a hierarchy of lower order centres at suitably accessible locations across the shire. [17] The implementation measures for this DEO include: 2.4(2)(f) Reinforce the roles of various centres in the achievement of the shire s commercial hierarchy, including Maroochydore as a Key Regional Centre, Nambour as a Sub-Regional Centre and a District Centre at Sippy Downs Represented by Mr Manning, solicitor, who appeared for the appellants in nos. 23, 29, 34, 35, 36 & 37/2002 Exhibit 6,Vol 2, p5, clause 2.4(1) Exhibit 6,Vol 2, p6

10 [18] It was said this proposal compromises achievement of the DEO because it does not reinforce the roles of the nearby Coolum West Local Centre as a convenience centre, and does not reinforce the role of the Coolum Village Centre as the higher order centre (these terms are explored in greater detail later). There is, however, no evidence at all to suggest this development would in any way compromise, or impact upon the role of Maroochydore as a Key Regional Centre, or is not suitably accessible, or would not fit reasonably within a hierarchy of centres of a lower order than Maroochydore, or adversely affects that hierarchy to a degree which compromises the DEO; and rather, for reasons expounded later, I am satisfied it sits comfortably within that hierarchy. [19] The issues were addressed through town planning evidence from Professor Brannock, Mr Buckley, Mr Schomburgk, and Mr Ryter. Evidence about need was received from economists/retail analysts Mr Winter, and Mr Norling. Mr King gave evidence generally about amenity and, in particular, questions touching noise, light and air; Mr Covington about the risks of effects of floods; and Mr Sheehan, the co-respondent s architect, discussed the design of the proposed development, and elements touching its impact. Mr Beard, a traffic engineer, was called to discuss that issue. Mr Sutherland, the co-respondent s development manager and Mr Michel, Woolworths property manager (Woolworths has committed to operate the supermarket if the development goes ahead), and a town planner, were also called. In addition, a large number of lay witnesses, and appellants, were called or volunteered to give evidence. They represented both sides of the debate and were, generally speaking, people who lived in the immediate vicinity or conducted a business there (like Mrs Rae, who operates the nearby convenience store, to the north at the roundabout) Supermarkets in Coolum [20] The manner in which the issues were addressed in the evidence and, in particular, the focus on other possible sites for a supermarket make it appropriate to touch upon the history of attempts to install one in Coolum. At present the town has only one shop which might fall within the ordinary 8 Mrs Greene, Mrs Reiss, Mr Plant, Mrs Hewett, Ms Wilson, Mr Jack Wilkinson, Mr Steinhardt, Mrs Lewis, Mr Douglas, Mrs Bell-Hutton, Mrs Miles, Mr Hatfull, Ms Francis, Mr Harte,

11 definition of a supermarket : the small (800m 2 ) IGA store in Birtwill Street in the Coolum Village area in what is, generally, the north-eastern part of the town, on the ocean side near the David Low Way. A number of applications have been brought for supermarket developments, however, and some are still on foot. [21] In 1998/1999 the Heritage Properties application was brought for a stand alone supermarket with an area of 3,100m 2 in Elizabeth Street, in the village centre. The application was assessed under the former, transitional Planning Scheme for the shire and, ultimately, determined by this Court 9. Quirk DCJ found that the existing local area plan did not lend support for the proposal; the proposal would result in a refocusing of retail activities in the area, and create unacceptable amenity impacts; it was in conflict with the strategic plan; and, the development was not one which the local residents would have anticipated, and amenity issues could not be resolved. Relevantly, too, his Honour was concerned about existing traffic problems in the area (while accepting that the adequacy of on-site car parking in the proposal was not an impediment to it). [22] In December 2000 the Council also refused a proposal called the Ariadne Centre, involving a redevelopment of the former Stewarts Hotel site on Margaret and Birtwill Streets and the David Low Way for a shopping complex, hotel and associated parking (including a supermarket of 2,250m 2, speciality shops of 880m 2, and a hotel of 1,070m 2 ). The grounds for refusal included, in particular, insufficient provision of car parking spaces, effects on traffic in and around the village centre, a size which exceeded the 3,000m 2 permitted in the village centre, and concerns that the proposal was contrary to the key character elements of the Coolum Beach area, where the (then) draft Maroochy Plan 2000 showed an intention that any supermarket be of a small scale. [23] At the western entrance to Coolum and just off the Sunshine Motorway is a property usually called the Barns site which was formerly occupied by a tourist attraction called the Llama Farm. In 1998 the Council refused a supermarket of 2,000m 2 on that site. Last year, however, Council approved an application for a large development on this property with a total area of 9,000m 2 which, although 11 9 Mrs Hogan, Ms Magri, and Mrs Rae (1999) QPLR 217

12 predominantly intended for showroom purposes, would include a supermarket of 2,750m 2. Although the Council s Planning Officer recommended a partial approval only, excluding the supermarket, Council approved the total development. The planning grounds said to support approval included: 12 (a) (b) (c) the intention of Council to review the strategic plan and Maroochy Plan 2000 to take into account the community demand for a large supermarket in this area; (my emphasis) that a supermarket on the outskirts of Coolum would be strategically placed to service a wider catchment area than the town itself; that the supermarket would have no detrimental impact on the business centre of Coolum or the economic retail strategy detailed in Maroochy Plan Notwithstanding approval the applicant has, however, suspended the appeal period and the future status of this proposal is, presently, uncertain. [24] Council also has before it, at the present time, an application for a stand alone supermarket of 2,550m 2 at the rear of the existing Coolum village shopping centre on Birtwill Street (the Pithurst Centre). Its car parking provisions comply with the requirements of the Planning Scheme. It also incorporates a residential subdivision. The application was made to Council in April 2002, and was the subject of a detailed information request issued by the Council on 1 May where, for the present, it rests. Need [25] I accept Mr Winter s evidence that, at present, Coolum is not well-served with this kind of facility and there is an under-provision of supermarket floor space within the relevant trade area. The want of competition inflicts a lack of choice upon local residents who are forced to travel, in large numbers, considerable distances to shop at what are called full-line supermarkets 10. A little surprisingly, the permanent residents have a relatively low socio-economic profile and the additional travel costs, and want of competition are, then, an extra burden. A new, full-line supermarket would provide convenience, an increased range of goods, an increased choice of shopping venues, more

13 competitive pricing, improved shopper comforts and amenities, and some employment 11. The proposed supermarket operator, Woolworths, is the preferred trader of almost 40 per cent of the Queensland population, and of 35 per cent within this trade area in circumstances where it is not, presently, represented. [26] There is effective unanimity that Coolum needs another supermarket. The economic experts agreed 12 that the community s wellbeing would be enhanced by the provision of a major supermarket; that the populations of the nearby residential areas at Mount Coolum, and Peregian West are presently insufficient to support a major supermarket and for the foreseeable future will rely on Coolum Beach for that facility; this centre would offer a readily accessible location for supermarket shopping for the majority of residents of both Coolum Beach, and Mount Coolum; and, its proposed location would enable it to serve other adjacent areas (Peregian West, Peregian Beach, and Marcoola). This evidence, enhanced by a view of these areas and the extensive residential development which is proceeding in some of them, clearly shows the need, and potential benefit, is not limited to residents of Coolum Beach (designated in Maroochy Plan 2000, Volume 3, as Planning Area No 11 Coolum Beach), and better supermarket facilities in Coolum would also advantage these nearby communities. [27] A number of local residents gave evidence of their dissatisfaction with the lack of a full-line supermarket in Coolum at the present time and their support of the provision of this proposed facility, at this site 13. Some of them lived in areas where, conceivably, the development would have an impact in terms of amenity (Magenta Drive, Learg Street, and Edith Place). Most said they were fed up with having to drive to Noosa, or Maroochydore to perform supermarket shopping. Even those opposed to the approval of this application, like Mrs Hogan, do not argue there is no need for another supermarket in Coolum Exhibit 9, Table 8, showing 44% of central Coolum residents shop at Maroochydore 11 Exhibit 9, p Exhibit Exhibits 31-34, 36, 37, 42-46, 52 & 53

14 Indeed, she conceded she would shop at this site if the supermarket was approved 14. [28] There can be no doubt the provision of a facility like the one proposed would be of benefit to the Coolum community, and residential communities in its vicinity. The dispute, rather, centres on the question whether this strong existing need should only be satisfied by another small-scale supermarket or, whatever its dimensions, one which is situated in the village centre where, as the conclave of economic experts conceded, there is sufficient land 15. [29] The Planning Scheme speaks, in Volume 3 at p 205, of the residents of Coolum having indicated they are prepared to forgo the provision of higher order and larger scale retail services. The strong, clear evidence of the need for a fullline supermarket belies this assertion and the plan has, obviously, been overtaken by such things as population growth. As was made clear in Playfair v Maroochy Shire Council (1991) QPELR 87 at 88H 16, planning schemes can be overtaken by events and, in those circumstances, the relevant provisions should not, necessarily, prevail. [30] It is also apparent that, properly construed, the planning documents simply confirm that any supermarket in the village centre area of Coolum would have to be on a relatively small scale, and that is a proposition that reflects common sense, having regard to the existing levels of traffic congestion there; the obvious town planning aim of preserving a small coastal village atmosphere in Coolum for tourists, and locals; and, the expressed public desire for larger newscale retail and commercial uses to be located to the west 17. [31] Otherwise, presently, so far as the village centre is concerned the Pithurst application is yet to be assessed or decided by Council, and has not progressed to a stage where it can be given any real weight in these proceedings 18. In any event, it cannot be assumed that a facility appropriate to meet the present, T p 788, l Exhibit 10, para Cited with approval by the Court of Appeal in Grosser v Gold Coast City Council (2002) 117 LGERA For example, Exhibit cf Hervey Bay Projects v Hervey Bay City Council (1993) QPLR 104, at 114; Dalgety Australia Pty Ltd v Brisbane City Council (1981) APAD 340

15 pressing need would be able to be acceptably developed in the village centre. Mr Beard, Professor Brannock, Mr Buckley and Mr Schomburgk all gave evidence to the effect that it is highly unlikely that a full-line supermarket could suitably locate there 19. Further, as Mr Winter suggested, it is possible any new supermarket in the village centre would serve to replace rather than add to the existing small IGA facility, which may relocate. 15 [32] It is also incorrect to assume, as the appellants sometimes appeared to do, that Coolum Beach will only ever accommodate one further supermarket, and it is simply a question of deciding which site is the best. There is no suggestion the co-respondent is seeking to achieve a monopoly and, rather, its development would simply introduce choice and competition where, presently, there is none. The area is growing rapidly, and will probably continue to do so. Further growth will fuel the need for additional facilities in the future including, conceivably, a large supermarket in the village centre if that is, ever, appropriate. This Court has generally rejected the proposition that a development which otherwise suitably fulfils an identified need should yet be rejected because a better site can be postulated 20. That approach would involve, as Mr Buckley said, speculation and the risk of an identified need going unfulfilled 21. [33] There is little evidence to suggest the site is not an appropriate one, judged on its own merits. Mr Norling, for example, did not contend the site itself was inappropriate but argued, rather, that it would simply be more logical and there would be more benefits if a full line supermarket was placed in the village centre. This was far from a universal view and the evidence of Mr Beard concerning traffic issues was, quite powerfully, to the opposite effect. [34] Public or community need has always been highly material in this jurisdiction and, under Maroochy Plan 2000, is broadened to include community benefit 19 Exhibit 8, para 6.6; Mr Buckley T ; Mr Beard T ; Mr Schomburgk T 719 l15 20 Patterson v Hervey Bay City Council (1989) QPLR 184 at 186; Castro v Douglas Shire Council (1992) QPLR 146 at 158; Landel Pty Ltd v Redland Shire Council (2000) QPELR 60 at 73 & 74; Queensland Adult Deaf and Dumb Society v Brisbane City Council (1972) 26 LGRA 380; Barcoo Pty Ltd v Crows Nest Shire Council (1987) QPLR 242 at 247; Town of Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161 at 171; and, see Land Development Law in Queensland Fogg, p T 591

16 as well as community need and the public interest 22. The phrase public need involves the notion that the physical wellbeing of a particular community, or a measurable part of it, can better or more conveniently be served by providing the means for ensuring the provision of the proposed facility, subject always to other relevant town planning considerations 23. [35] The question whether need exists is to be decided from the perspective of a community and not that of the applicant for development, its competitors, or objectors 24. Otherwise, the weight to be afforded to it is not fixed 25 and where, as here, the apparent public or community need for the proposed facility is strong and relates to a basic requirement of the resident population it is, plainly, a matter to which considerable weight must be given [36] In this case that strong need must, however, be weighed against other factors including, in particular, impact upon the amenity of the residents. At the same time, of course, the community consists of more than just particular members of it. As the Court said in Holts Hill Quarries Pty Ltd v Gold Coast City Council (1999) QPELR 415 at : An attempt should be made to reconcile the various provisions where there is apparent conflict. However, there may be occasions when approval may properly be given to a proposal even though it may apparently conflict with some town planning objectives. Provisions exist for exceptions to be made to the general planning policy in appropriate circumstances, and this may mean that on occasions what may be regarded as genuine and legitimate concerns of some members of the community who may be adversely affected by a proposed development may have to be over-ridden by what is in the best interest of the community as whole. [37] I am satisfied there is an overwhelming need for a facility in Coolum to provide for the basic weekly grocery shopping needs of the present and expanding number of residents in the area. It is also clear that this need is something to which considerable weight must be given, particularly in the context of amenity impacts and the many and varied provisions of the Planning Scheme. 22 S 8.1.1(O) 23 All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155 at 157; Skateway Pty Ltd v Brisbane City Council (1981) APAD 417 at Arksmead Pty Ltd v Gold Coast City Council (1989) QPELR 322, at 330 (affirmed on appeal: LGERA 60) 25 Intrafield v Redland Shire Council (2001) 116 LGERA 350, at See Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313, at 317

17 17 Maroochy Plan 2000 [38] The Maroochy Planning Scheme is comprised of four volumes 27. As explained in Volume 1 (at p 11), that volume contains general matter concerning the scheme s background, principles, and administrative provisions. Volume 2 comprises the Strategic Plan which sets out the Vision and DEO s, and the manner in which they are to be achieved. Volume 3 contains statements of desired character for each particular Planning Area in the shire, (and smaller areas called precincts within them) into which the shire is divided, in some considerable detail. Volume 4 contains the planning scheme codes. [39] The town of Coolum effectively comprises the whole of Planning Area No 11, in Volume 3. The subject land falls in Precinct 9, Coolum Beach Hills within that planning area. That precinct includes much of the town south of the Yandina Coolum Road, stretching from the eastern slopes of Coolum Hills, west across the ridge to South Coolum Road. The entire precinct is marked and coloured on the map for Planning Area No 11 to indicate it is intended to be used for, and limited to, neighbourhood residential development. [40] Immediately to the north of the subject land, however, and extending further north to Yandina Coolum Road, is Precinct 4, Coolum West Local Centre, which encompasses the shops at the roundabout, and the industrial premises south of them along South Coolum Road, down to the co-respondent s land. The Village Centre is Precinct 1. [41] The parties all agree the planning scheme is to be read as a whole, but divide as to the proper conclusion when that process is undertaken. The appellants contend the exercise involves descending or digging down through these volumes, until the precise neighbourhood in which the proposed development will be located is identified, and where clear direction about the intended uses for it are stipulated. The process was described by one of the appellants town planners, Mr Schomburgk, as follows: 27 Exhibit 6

18 18 The Planning Scheme we re dealing with here is quite different in that what it has sought to do, and I think it has done reasonably well, it has come up with a strategic context, and it has translated that down, right down through to the lowest practical level, in this case the planning areas. So we have a planning area which is just all shown as pink, in this case neighbourhood residential precinct, and that has embodied within it, its text. The forward planning intentions, the statements of desired character, whatever terminology you want to use, that come from the desired environment outcomes that Planning Scheme must have, and the strategic planning intent. And I see that has flowed down, in all the reading down of the document, it s flowed down from chapter 2 through to chapter 3, and indeed in many cases into chapter 4, the codes 28. [42] Some support for the exercise, as a process of construction, can be gained from the Plan itself: Volume 3, s explains how the shire has been divided into 30 Planning Areas, and over 300 Precincts, in 18 precinct classes, and says that: The applicable Precinct Class intent should be read in conjunction with the relevant Planning Areas and specific Precinct description when an application requires impact assessment. It is also said, however, that each Precinct Class identifies a general intent for individual precincts (my emphasis). [43] The respondents argue that this method of construction imputes far too much prescience to the authors of the plan, and what is found after all the digging down is immutable, or absolutely prescriptive. In his oral submissions Mr Hughes SC, for the Council, debunked the appellants approach in this way: Listening to the way they ve analysed the Planning Scheme, it would appear that there s really no room for material changes of use applications, within the shire, because the level of planning is so great, the natural corollary of their submissions is that unless your particular use receives support from the planning documents by reference, in the verbiage applicable to the relevant precinct, then you may as well not bother lodging the application That is simply not the way the planning documents are read. A planning document must be alive and must react to changes in circumstances and to applications which may or may not fulfil public needs, or even private desires, which is simply not contemplated by the Planning Authority at the time it prepares the document. 28 Transcript, pp Exhibit 6, p4

19 Rather, the respondents propound what they say is a more sensible, practical and purposive approach to construction, which examines the proposal, on its merits, in the overall context of the Plan. 19 [44] A planning scheme promulgated under IPA has the status of a statutory instrument 30 and must, therefore, be interpreted in a way which best achieves its apparent purpose 31. The process of construction must, too, be undertaken in light of IPA s clear proscription against any elements of a scheme which purport to prohibit development on, or the use of, premises 32. [45] In ZW Pty Ltd v Hughes & Partners Pty Ltd (1992) 1 Qd R 352 it was said that, when interpreting a Planning Scheme, the Court should take a common sense approach; and, the particular document should not be read too narrowly but, rather, broadly (rather than pedantically) and in a way which adopts a sensible, practical approach 33. These statements reflect long-settled principles in relation to the judicial approach to planning schemes. In Pacific Seven v City of Sandringham (1982) VR 157 at 163 it was said: Planning is a difficult exercise with flexibility as an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the end of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness. [46] This plan is a dramatic example of the growth in the size and complexity of planning schemes in recent times. Inevitably, the expansion of these planning documents will generate internal tensions or inconsistencies and, occasionally, different passages in them will appear to express a desire for what seem to be competing objectives. That prospect compounds the necessity for a careful and 30 S Acts Interpretation Act (1954) s 14A; Nordale Management Pty Ltd v Maroochy Shire Council (1995) QPLR 368 at S per Pincus JA at 73 & 75; and MacKenzie J at 78; and, see Harburg Investments Pty Ltd v BCC (2000) QPELR 313 at 318; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41; Body Corporate Greatwood CTS v Maroochy Shire Council (2001) QPELR 293 at 302

20 balanced, but not unduly pedantic, approach to the interpretation of their provisions. As Skoien SJDC has said, on different occasions: 20 It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly 34. I am attracted to the planning approach of the shire s planning officer which is to emphasise the necessity of reading the strategic plan as a whole. That is not to say that one goes in search of an isolated statement anywhere in the document which, when taken out of context, might support an argument. Such a search, in most planning schemes, could unearth support for almost any argument. If however a statement can be found which clearly sets out a fundamental principle of the Planning Scheme which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document 35. [47] Statements to similar effect were made by Robin QC, DCJ in Vynotas Pty Ltd v BCC (2001) QPELR 14, at 40: In a complex appeal such as this, the Court should read the Planning Scheme as a whole. I have set out extensively passages which I accept are relevant, and have taken into account. The scheme is bulky, often repetitive, and not devoid of conflicting messages. Provisions are there which come close to providing support for almost any argument, to quote Senior Judge Skoien in Drive Type Pty Ltd v Council of the Shire of Caboolture [48] The application of this approach to construction is exemplified in another decision of Skoien SJDC, Provincial Securities Pty Ltd v Brisbane City Council (2001) QPELR 143, at 147, a case involving elements which are germane here. Faced with a statement of intent in the planning scheme for Brisbane requiring consideration whether a shopping proposal would mainly serve residents in the immediate locality, his Honour determined that this was not a critical point or an absolute requirement but, merely, a consideration to be taken into account 34 Degee & Anor v BCC (1988) QPELR 287, at 289

21 and referred, as authority for that conclusion, to Prime Group Realty v Brisbane City Council (1995) QPELR 173, at 176; and, Phil Fletcher Planning and Investment Services v Brisbane City Council (1991) QPELR 16, at 18. The Brisbane planning scheme also contained another requirement that shopping centres should be on neighbourhood access roads and, at 145, his Honour suggested that centres located in these places would very likely wither and die for lack of custom, and the requirement was: 21 an example of the drafter s wishful thinking and admirable as may be the wish it is unlikely to be met in today s real world. [49] At the same time, the process of construction must not become one by which the Court usurps the role of local government. As Quirk DCJ said in Elan Capital Corporation v Brisbane City Council (1990) QPELR 209, at 211: It should not be necessary to repeat that this Court is not the planning authority or the city of Brisbane. It is not this Court s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper way has chosen to adopt 36. [50] It is also to be remembered, in the context of this appeal, that it is not this Court s function to determine whether a better site exists for a particular proposal but, rather, simply whether approval should or should not be given for the particular use proposed on the particular site 37. This appeal does not, then, involve any element requiring an assessment of other current proposals for supermarkets, or which is the best proposal or involves the best site. [51] Some aspects of this plan were considered by Robin QC DCJ in Lend Lease v Maroochy Shire Council and Tallenbrook Pty Ltd [2002] QPEC 40 ( Tallenbrook ), which also involved a submitter appeal against Maroochy Council s decision to approve a local neighbourhood centre on land which, as here, was contained in a neighbourhood residential precinct, and immediately adjoined an existing local centre. The proposed development also was similar 35 Drive Type Pty Ltd v Caboolture Shire Council (1995) QPLR 141, at And see Pacific Exchange Corporation Pty Ltd v Gold Coast City Council (1998) QPELR 335 at 339; and, Sheezel v Noosa Shire Council (1980) QPLE 130, at Queensland Adult Deaf and Dumb Society v Brisbane City Council (?) 26 LGRA 380, at 386; SEAQ v Warwick City Council (?) 24 LGRA 391, at 394; and, Castro v Douglas Shire Council

22 to that sought here a supermarket containing 2,100m 2 and, overall, 3,815m 2 of retail premises plus some offices, a service station and a small tavern. Although the application for approval had been formally lodged under the former Planning Scheme for this shire, it was necessary for the Court to examine the provisions of Maroochy Plan [52] In Tallenbrook, and again in this case, the retail hierarchy described in the plan and, in particular, the importance to be attached in that hierarchy to the designation of a particular area as a village centre was in issue. When considering places designated in that way, his Honour said: 22 There is no particular significance about the relative placements of the lower order centres. Village centres hardly fit neatly into the hierarchy; it seems clear that they are places, typically in country towns, where, historically, there has been some commercial development. It is reasonable that this has been thought to call for recognition in the planning documents. It does not seem to me a matter productive of particular concern that a neighbourhood or local centre might be difficult to distinguish from some village centres, or might be larger than some village centres. The history of the strategic plan suggests it is accidental whether village centres come above or below local centres they are, it seems to me, special or anomalous cases bequeathed by history and really stand apart from the hierarchy. 38 [53] The appellants here placed considerable weight upon some statements in Volume 3, (Planning Areas, Precincts and Precinct Classes) and, in Tallenbrook, similar issues again arose. After analysing the specific provisions relating to the relevant planning area and precinct applicable in that case Robin QC, DCJ made a number of observations, of more general application, upon which the respondents here rely: (a) The fact the Planning Scheme omitted to proscribe any physical expansion of the existing local centre, which was next door to the applicant s land, (here, the existing local centre is a short distance to the north) was significant, and to be contrasted with the deliberate proscription on the expansion of certain other local convenience centres which he referred to in para [36]; (b) He expressed the view that an apparent size limitation of 5,000m 2 for local centres in the Code for those centres 39 was an error since the limit would not leave sufficient space for parking, landscaping and other outdoor aspects. (1992) LGRA 146, at paras [24], [27], & [45] 39 Exhibit 6, vol 4

23 23 (c) He also noted, in respect of that Code, that in light of the provisions of vol 4, s , failure to comply with the terms of the acceptable measures would be of little concern as, in terms, the governing performance criteria were met. (d) He noted an odd situation with respect to the definition of shopping complex but found that an appropriate practical approach would be against applying the definition of shopping complex in all its rigour because it was clear that the supermarket proposed in Tallenbrook was a shop which was not an inappropriate use in a neighbourhood centre. [54] He also made some other general findings which, the respondent Council said, supported its decision to approve this proposal. In particular, his Honour identified recent trends towards more frequent grocery shopping (for example, twice weekly) and mentioned earlier decisions of this Court establishing that trend; found that the Tallenbrook centre would serve both the supermarket, and convenience shopping needs of quite a large community by providing a higher level and more comprehensive range of goods and services than is currently available in the smaller centres in the area ; accepted the proposed development was in a good location at the confluence of two important roads, within the road network; and, found that however the issue of need or demand for the facilities proposed was examined, it was clearly satisfied. [55] The undeniable purpose of a town Planning Scheme is to regulate, within reasonable limits consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area. The approach to construction of Maroochy Plan 2000 advanced by the respondents seems to me to accord with that discussed in the authorities I have reviewed and, in this instance, with the approach taken by Robin QC, DCJ in very similar circumstances in Tallenbrook, which places weight upon the purposive elements of the scheme, with its emphasis on community need as an important aspect of town planning, and gives no special weight to what might be called, here, the microcosmic aspects of the plan touching, at its lowest levels, individual communities. [56] This does not mean that the structure of this plan with, as the appellants correctly point out, its apparent descent from the general to the particular is 40 Exhibit 6, vol 4, pp 3-4