Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116

[1] McPHERSON JA: I agree with the reasons of Moynihan J. The appeal should be dismissed with costs.

[2] MOYNIHAN J: The appellant, wishing to construct a service station and convenience store on land in the Redland Shire, applied to the respondent Council for the necessary permissions. These involved a development permit for material change of use in respect of land zoned rural/non-urban under the applicable planning scheme and the reconfiguration of the land by way of subdivision.

[3] The appellant appealed to the Planning and Environment Court as a consequence of the Council refusing the applications. That appeal was dismissed and, leave to do so having been obtained, the appellant now appeals to this Court. Its appeal is confined to demonstrating error of law or want of jurisdiction.

[4] The appeal was advanced on essentially two bases. First, that the primary judge was wrong in concluding that the appellant's failure to demonstrate need required that the appeal be dismissed. Secondly, that he misinterpreted and/or misapplied the principles of law which determined what constituted town planning need.

[5] It may be accepted that for the primary judge to have regarded the failure to establish need as binding him to dismiss the appeal constituted an error of law. The issue is thus whether he proceeded on that basis. Consideration of the structure of the reasons for judgment, as well as the content, is useful in resolving that issue.

[6] In turning to the reasons for judgment it may be noted that the learned judge characterised need as the predominant issue of the appeal. Some indication of the justification for his doing so is found, by way of contrast with other issues, in the fact of the wide ranging conflicting evidence from two expert witnesses, one called by each side, directed to the issue of need.

[7] The introduction to the reasons describes the applicant's proposals and the applications. It notes that the relevant planning scheme was a transitional planning scheme and that both applications could be dealt with in the same proceedings.

[8] The introduction then identified, it was accepted correctly, the following six issues to be resolved:

1. whether there is a need for the development of the land for the purposes proposed;

2. whether there is conflict with the strategic plan and the respondent's development control plan, and if so whether there are planning reasons to warrant approval despite the conflict;

3. whether there is conflict with the intent of the rural/non-urban zone in that both the nominated uses ie service station and shop are prohibited uses in the zone;

4. whether there is conflict with the Council's local planning policy relating to the development of land for the purpose of service stations (including combined premises for service stations and shops);

5. whether the proposal is contrary in built form to the character and amenity of the locality; and

6. whether the proposal conflicts with the subdivision of land provisions of the planning scheme, and whether there is any discretion to permit the reconfiguration.

[9] The reasons for judgment then embarked on a consideration of the six issues in the order set out above under separate headings. The primary judge concluded the applicant had not discharged its onus to establish need. He then proceeded to consider the other issues in order under their separate headings. His determination of them was essentially favourable to the appellant.

[10] In dealing with issue three the primary judge noted that some considerations of the repealed legislation pertinent to a rezoning application applied to an application for a material change of use under the current legislation. He then said:

"...in terms of those matters, putting aside the question of need, the proposal is such that it ought to be approved".

[11] The reasons then canvassed the remaining headings before concluding:

"However the failure of the appellant to demonstrate need for the development means the approval must be dismissed".

It is this sentence which is the foundation of the first basis of appeal.

[12] Put shortly, the reasons of the learned judge, after setting the scene and identifying the issues to be resolved, determine need as the "predominant issue in the appeal". The reasons then canvass the other issues listed earlier. They then, in the context of what has gone before, take up the consequences of the appellant's failure to prove need. On the basis of that consideration the application was dismissed, notwithstanding the other considerations which favoured approval. On a fair reading of the reasons the primary judge did not regard himself as compelled to dismiss the application because of the appellant's failure to establish need, although in the end that was the decisive factor.

[13] It is convenient to turn now to the second basis upon which the appeal was argued. This essentially was that the primary judge applied too stringent a test of need and erred by reflecting concern for the position of existing traders if need were made out.

[14] The reasons of the learned judge relevant to this issue include:

"Of course convenience for the motorist is a major element in establishing planning need, but in my opinion in this case the evidence does not go further than to show that the proposal would be an attractive and additional choice for some of those motorists. That falls short of showing that the needs of motorists are not at present adequately catered for...

Whether or not the proposal, if approved, would be a viable operation, is a matter hotly contested by the two expert witnesses. If it was, it would achieve this result at the expense of other service stations currently providing the service to the residents of Victoria Point and Redland Bay (although it is not suggested that any of these would be rendered "uneconomic"). The fact that a number of these commuters would be likely to purchase their petrol supplies and convenience goods at the proposed service station instead of at outlets currently patronised by them no doubt indicates a degree of convenience offered by the proposed outlet in comparison with the existing outlets. This does not, however, in my opinion, of itself demonstrate that there is a demand for the provision of a new facility in the vicinity of the proposed service station. Given an addition to existing choices a number of consumers are likely to avail themselves of it as a matter of human experience. While this indicates a consumer preference, to an extent which is, however, debatable, it does not demonstrate inadequacy in the existing arrangements and therefore falls short of showing a planning need for the development.

The evidence also shows, in my opinion, that there are adequate present facilities for convenience shopping for home-bound motorists, some associated with service stations, and some not."

[15] The appellant advanced the following summary of the findings made by the primary judge in respect of the issue of need:

"(a) that a service station and shop on the proposed site would be both attractive and convenient for motorists returning to Victoria Point and Redland Bay from the City;

(b) that about 12,000 motorists each day passed the site on the way home;

(c) that the purchase of petrol and convenience shopping is something typically done on the homeward journey;

(d) that the appellant's proposal was very conveniently sited for the proposed purpose;

(e) that the proposal would be an attractive and additional choice for motorists;

(f) that evidence before him indicated a degree of convenience offered by the proposed development in comparison with existing developments."

[16] While it was acknowledged that the findings so summarised were selective, it was submitted that "on the relevant authorities they were sufficient to establish need"; the implications seemingly being that they compelled a finding for the appellant and that the failure to make it constituted error of law.

[17] The respondent extracted the following summary:

"(g) there were other large and modern service stations available to residents of Victoria Point and Redland Bay returning home from the city...;

(h) they were both modern well equipped facilities offering both fuel and convenience shopping...;

(i) there was no real evidence of inadequacy in respect of those service stations or another service station at Victoria Point...;

(j) the evidence went no further than showing that the proposal would be an attractive and additional choice for some motorists, and that evidence fell short of showing that the needs of motorists are not presently adequately catered for...;

(k) the degree of convenience offered by the proposed outlet in comparison with existing outlets did not of itself demonstrate a demand for a new facility...;

(l) given an addition to existing choices, a number of consumers were likely to avail themselves of the facility, but that consumer preference did not demonstrate inadequacy in existing arrangements...;

(m) there were adequate present facilities for convenience shopping for homebound motorists..."

[18] Accepting for the moment that the findings numbered (a) to (f) are capable of founding a conclusion of need, no satisfactory basis was advanced for excluding those findings summarised under (g) to (m) from that assessment.

[19] The test imposed by the primary judge was said to be too a stringent definition of need; it was submitted that a use would be needed if on balance it improved the service and facilities available in a locality; Cut Price Stores Retailers Pty Ltd v Caboolture Shire Council [1984] QPLR 126; Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515; Reiken & Ors v Ipswich City Council [1984] QPLR 147; Indooroopilly Golf Club v BCC [1982] QPLR 13; Ecovale Pty Ltd v Gold Coast City Council [1998] QCA 67; [1999] 2 Qd R 35 in particular were cited.

[20] Those cases indicate, as the appellant acknowledged, that need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account. The findings of the primary judge amount to no more than that the existing facilities were adequate and the proposal would do no more than give a choice which some consumers might choose to avail themselves of.

[21] The findings were open and authorities do not support a conclusion that this satisfies the requirement of need.

[22] Kentucky Fried Chicken Pty Ltd v Gantidis & Anor [1979] HCA 20; (1977-1978) 140 CLR 675 at 687 was cited in support of a proposition that the reference to the "viability of the operation" in paragraph seven of the reasons of the primary judge show a concern with the protection of existing traders from competition which was irrelevant unless the impact of the new proposal resulted in a nett loss of facilities to the public not made good by the new development. The passage does not however suggest a conclusion that the judge gave effect to any such concern. The primary judge did not suggest any existing facilities would be rendered uneconomic.

[23] In any event Gantidis was not concerned with need in the sense that the primary judge was concerned with it. It was concerned with the stage at which an overall adverse affect on facilities of the local community becomes a relevant town planning consideration. That is irrelevant in this case.

[24] The considerations being those canvassed the appellant has failed to demonstrate error of law and the appeal should be dismissed with costs to be assessed.

[25] WILSON J: I also agree with the reasons of Moynihan J. The appeal should be dismissed with costs.