(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Local Government (Planning and Environment) Act 1990 (repealed), s 4.4(5A)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:
- alleged conflicts with the Respondent Council's planning scheme;
- whether approval would result in unacceptable loss of industrial land;
- whether there were sufficient grounds for approval despite a conflict with the planning scheme;
- economic need;
- 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:
- The proposed development was "out of centre" development and would conflict with the centres hierarchy of the planning scheme.
- 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.
- 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.
- 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.
- 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.
- There were sufficient grounds to justify the proposed development despite conflicts with the planning scheme.
- 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.
- 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.
- 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.
- 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.
- 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.