Australia: 13/13 Woodman Mcdonald Hardware Pty Ltd v Mackay Regional Council & Ors [2013] QPEC 21

(Andrews SC DCJ - 29 May 2013)
Download the judgement

Submitter appeal against decision to approve a development application for a material change of use for a large format Bunnings hardware – whether proposed development results in conflict with the planning scheme – whether conflict with centres hierarchy – whether conflict for use of Industry (High Impact) Zone land for non-industrial use – whether sufficient grounds – whether economic need – whether planning need – whether adverse impacts – whether absence of amenity and traffic impacts are "grounds" – whether to have regard to the published draft planning scheme – whether approval sabotaged forward planning or would have a significant adverse impact on planned facility

Sustainable Planning Act 2009 (Qld), s 314(2), 314(3), 326, 326(1)(b), 329, 329(1)(b), 493(2), 495(1), 495(2)(a), 496(1) and schedule 3

Local Government (Planning and Environment) Act 1990 (repealed), s 4.4(5A)

Facts: This was a submitter appeal against the Respondent Council's decision to approve the Co-Respondent's proposed development application, which comprised a subdivision and a material change of use for a Bunnings Warehouse large format hardware store in respect of land located at 165-179 Archibald Street, Paget, in South Mackay.

The Appellant operated a Mitre 10 hardware store at 281 Mount Nebo Road, Paget, which was located about 200 metres north of the Subject land. The Mitre 10 store would be a commercial competitor to the proposed Bunnings.

The main issues for determination in the appeal related to:

  1. alleged conflicts with the Respondent Council's planning scheme;
  2. whether approval would result in unacceptable loss of industrial land;
  3. whether there were sufficient grounds for approval despite a conflict with the planning scheme;
  4. economic need;
  5. whether approval would have a significant impact on existing and planned competing facilities.

The alleged conflicts with the planning scheme related to conflicts with the centres hierarchy provisions and the industrial land provisions.

The Appellant alleged that the proposed development was "out of centre" retail development and therefore conflicted an important and deliberate strategy of the planning scheme that recognised and sought to implement a hierarchy of retail centres in specific areas. The Respondent and Co-Respondent submitted that there was no practical conflict with these provisions because the proposed development would not have a significant impact on the existing hierarchy of centres in the planning scheme, nor would it cause any of the existing centres not to function properly.

The Respondent and Co-Respondent also submitted that previous decisions of the Respondent departed from the planning scheme's retail strategy, pointing to two decisions by the Respondent to approve two large format hardware stores in "out of centre" locations in North Mackay.

The Appellant contended that the proposed development conflicted with the planning scheme for using the Subject land for large scale retailing instead of preserving it for industrial uses.

In relation to the issue of whether approval would result in unacceptable loss of industrial land, it was argued by the Respondent and Co-Respondent that the Subject land itself was somewhat isolated from traditional high impact uses despite its "high impact" designation, and therefore, that it was unlikely to be used for a "high impact" use. Further, it was submitted that the subject land represented an area of only 1.3 per cent of the available vacant industrial land in Paget, which was so small a proportion that the subject land's loss to industrial development was acceptable.

The grounds relied upon by the Respondent and Co-Respondent to justify the proposed development despite conflict with the Planning scheme centred primarily on evidence that the planning scheme (due for review in 2014) had been overtaken by events due to a substantial underestimation of population growth and that it failed to anticipate a latent, unsatisfied demand by those south of the Pioneer River for a large format hardware store of the type proposed. The Co-Respondent also contended that the absence of traffic and amenity impacts associated with the proposed development was a matter of public interest given that the community need could be met in a manner that did not create impacts and therefore was relevant when considering the grounds raised by s329(1) of the Sustainable Planning Act 2009 (Qld) (SPA).

In terms of economic need, the Respondent and Co-Respondent led evidence in relation to the strong economic growth experienced in Mackay, and to the substantial change in the hardware industry in Australia which had resulted in a need for greater hardware floor space and for retail oriented large format hardware stores. The Appellant argued that there was no economic need for the proposed development and that its approval would result in the significant oversupply of hardware floor space in Mackay, particularly given the presence of several large hardware stores in Mackay north of the Pioneer River.

Finally, the Appellant contended that approval would have a significant impact on existing and planned competing facilities in Mackay.

The Draft Mackay Regional Planning scheme was published for public consultation following the conclusion of evidence in the hearing of the appeal. The draft proposed a Homemaker Centre at Ooralea. During the hearing, town planning evidence was that there was a substantial range of other bulky goods facilities which could form a key component of any such centre and that approval of the proposed development "would not destroy" any prospect of a Homemaker Centre at Ooralea.

Decision: The Court held in dismissing the submitter's appeal, that:

  1. The proposed development was "out of centre" development and would conflict with the centres hierarchy of the planning scheme.
  2. The nature and extent of the conflict with the planning scheme's retail hierarchy and network of centres was not significant given that the proposed development would have no practical impact on these.
  3. The decision of the Respondent to approve two large format hardware stores in "out of centre" locations did not constitute an unequivocal abandonment of its centres strategy. While they represented a clear and high level of conflict with the planning scheme, they were located near each other and were consistent with the current centres strategy and retail hierarchy being overtaken by population growth.
  4. The use of the subject land for large scale retailing instead of preserving it for industrial uses conflicted with the planning scheme. The general provision that a Hardware Store was a "consistent" use could be read harmoniously with a more specific provision that "industrial land is preserved for industrial uses in preference to non-industrial uses such as retailing particularly large scale retailing". It may only be a preference, but was made more emphatic where the non-industrial use was large scale retailing.
  5. The decision to approve would not result in an unacceptable loss of industrial land. In terms of the impact upon the supply of industrial land, the loss of the subject site, occupying such a small proportion of the total, would not increase the need to appropriately plan for future industrial areas within the Mackay market. Further, from an economic perspective, any impact on the loss of industrial zoned land may be considered appropriate.
  6. There were sufficient grounds to justify the proposed development despite conflicts with the planning scheme.
  7. The absence of any amenity and traffic impacts caused by the proposed development was relevant when considering the issues raised by s329(1)(b) of the SPA. It was a matter of public interest if community need could be met by the proposed development on the subject site in a manner which did not create traffic or amenity impacts.
  8. There would be an economic need for retail hardware floor space of 8,433m2 for those in the proposed development's main trade area south of the Pioneer River and its approval would meet that need.
  9. Approval would not result in adverse effects on the extent and adequacy of facilities available to the community. If it was the case that one or more of the smaller facilities closed, the loss would be made good by increased choice, continued competition and generally improved convenience.
  10. The Court should have regard to the draft planning scheme to determine whether approval would frustrate or sabotage a draft planning strategy and to determine whether Council was addressing the problem that there was no centre capable of accommodating the proposed development. The proposed development would not have a significant adverse impact on the planned facility at Ooralea.
  11. Subject to conditions of approval, the appeal should be dismissed and the application should be approved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.