Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - QUEENSLAND - GENERALLY - tenants claimed to be conducting "retail showrooms" - Planning and Environment Court held tenants were conducting "shops" without Council approval and ordered them to cease trading - conducting a "shop" in an area zoned for Commercial Industry under the Town Planning Scheme 1988 (TPS) required Council approval - each tenant applied to Council to use the subject site as a "shop" - s 4.13(5A) Local Government (Planning and Environment) Act 1990 (Qld) required the Council to refuse an application for a material change in the use of a site if the application conflicted with any relevant strategic plan or development control plan and there were no sufficient planning grounds to justify approving the application despite the conflict - subject site was zoned Commercial Industry under TPS - subject site was within an area designated for residential development on the 1993 Strategic Land Use Plan (SLUP) map and 1996 Development Control Plan - Council approved applications to use the sites as "shops" - Planning and Environment Court held that application to use of the sites as "shops" did not conflict with the SLUP and upheld Council decision- whether there is a conflict between application to use site as a "shop" and SLUP and DCP - whether there are sufficient planning grounds for approval despite any conflict

Local Government (Planning and Environment) Act 1990 (Qld), s 4.13(5A)

Beck v Atherton Shire Council [1991] QPLR 56, considered

Bowden & Ors v Brisbane City Council & Anor [1991] QPLR 271, considered

Cairns City Council v Hessels (1998) 98 LGERA 404, considered

Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205, cited

Cornerstone Properties Ltd v Caloundra City Council [2004] QPELR 54; Appeal No 17 of 2003, 20 August 2003, considered

Duncombe v Caboolture Shire Council [1990] QPLR 257, considered

Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209, considered

Grosser v Council of Gold Coast City (2001) 117 LGERA 153; [2001] QCA 423; Appeal No 8502 of 2000, 9 October 2001, considered

Holts Hill Quarries P/L v Gold Coast City Council & Ors [2000] QCA 268; Appeal No 7006 of 1999, 14 July 2000, cited

Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56; BD Nos 3950 of 2004 and 3492 of 2004, 26 July 2005, cited

Jensen & Bowers Pty Ltd v Redland Shire Council [2003] QPEC 44; [2004] QPELR 86, considered

Kouflidis v City of Salisbury (1982) 49 LGRA 17, considered

McLennan v Maroochy Shire Council [1990] QPLR 113, considered

McPherson v Caloundra City Council [1990] QPLR 272, considered

Stubberfield v Redland Shire Council & Anor [1993] QPLR 214, considered

Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd; Woolworths Ltd v Caboolture Shire Council & Makro Warehouse Pty Ltd [2004] QPEC 15, cited

[1] McMURDO P: The application for leave to appeal should be refused with costs for the reasons given by Jerrard JA.

[2] JERRARD JA: This proceeding is an application under s 4.1.56 of the Integrated Planning Act 1997 (Qld) ("the IPA") for leave to appeal from a judgment of the Planning and Environment Court of Queensland, given in Brisbane on 26 July 2005. In that decision the Planning and Environment Court heard two appeals together; one was by Leda Holdings Pty Ltd against a decision by the Caboolture Shire Council to approve an application by Jeanfern Pty Ltd for a material change of use affecting premises at 312-344 Morayfield Road, Morayfield, and the second appeal was by Jeanfern against various of the conditions imposed by the Council as part of the approval.

[3] On the hearing of the appeal both the first respondent (the Caboolture Shire Council) and third respondent (The State of Queensland) were granted leave to be excused on the basis that those respondents intended simply to abide by the decision of this Court. The respondent Council clarified that it was no longer asking the Court to have regard to any part of the 16 page outline of argument it had presented in December 2005. There was no appearance by the designated second respondent Jeanfern Pty Ltd; on 24 February 2006 this Court acceded to an application by the fourth respondent, Trust Company of Australia Limited, ("TCA") pursuant to Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") r 69(1)(b) to be joined on the appeal. TCA bought the land the subject of this application from Jeanfern, after Leda had instituted its application for leave to appeal. That leave was granted because TCA was the person likely to be most substantially affected by the outcome of the proceedings Leda brought in this Court, in circumstances where Jeanfern no longer had any interest in maintaining the judgment of the Planning and Environment Court in its favour, no other party had such an interest, and it was desirable and convenient that TCA be added; in the interests of natural justice to it and the benefit the Court would have of hearing argument from a contradictor.

[4] The relevant land is described as Lot 5 on RP 901611 in the Parish of Caboolture County of Stanley, containing an area of 8.0798 hectares, with the frontage of 402.54 metres to Morayfield Road, a major arterial road running north to the town centre of Caboolture. The site already contains a large commercial building with a gross floor area of 12,616m2, with nine retail tenancies. The two major tenancies which are the subject of this appeal are the Warehouse Group occupying 3,300m2, and a Makro Store with an area of about 5,000m2. The building in which they are located is called the "Morayfield Supa Centre" constructed in 2001. Makro and the Warehouse Group commenced trading at their respective tenancy sites in 2002, contending that each was conducting a "retail showroom" under the relevant Caboolture Shire Planning Scheme, and that permission was unnecessary. The Planning and Environment Court declared on 7 May 2004, in proceedings brought by Woolworths Limited[1] ("the 2004 judgment") that what Makro and the Warehouse were conducting were in fact "shops" as that term was defined in the planning scheme, and should cease trading. That order was later suspended pending application for the approval for a material change of use at those premises, which resulted in the appeal to the Planning and Environment Court which is now the subject of this application.[2]

[5] The judgment now sought to be appealed ("the 2005 judgment") records that, as at the date of the 2005 judgment, at the northern end of Morayfield Road there is a shopping centre called Morayfield Market Plaza. Further south is the very large (and expanding) Morayfield Shopping Centre owned by Leda. Travelling further south again there is a composite of retail and commercial premises including retail showrooms and then, at the intersection of Morayfield and Walkers Road, a large Bunnings Warehouse, which had recently obtained approval for a significant extension. The site the subject of this application is a little south of the Bunnings Warehouse, and to the west of the subject site is a community centre on a large parcel of land zoned Open Space. To the east of the site, on the opposite side of Morayfield Road, there is another large parcel, whose owners were recently granted approval to develop retail showrooms. The learned judge recorded in the judgment that the vivid impression left by inspection was that Morayfield Road was a busy retail and commercial precinct over a considerable distance between the Caboolture River just south of the town centre, and the site the subject of the appeal; and that recent approval on the opposite side of the road for retail showrooms, combined with the fact that land immediately to the south of the subject site was under single ownership, made it highly probable that development of a similar kind would expand further south on Morayfield Road to at least the railway overpass. The judge observed that such further southern expansion had been predicted in the Strategic Land Use Plan (SLUP), introduced for the Shire in 1993.

[6] As at the date of the 2005 judgment, the applicable planning documents were the Town Planning Scheme for Caboolture Shire introduced on 12 March 1988, the December 1993 SLUP, and a 1996 Caboolture Shire Council Development Control Plan No 6 - Morayfield (the "DCP"). As the learned Planning and Environment Court judge remarked, those documents cannot comfortably be read together, at least not in a way which engenders confidence that they reflect a clear and consistent plan for this site or Morayfield Road in general. The judge considered that that state of affairs reflected the dramatic growth in the population of the Caboolture Shire within the preceding two decades, the significant development which had occurred along Morayfield Road since 1993, and attempts by planners to keep pace with all that.

[7] The subject land was zoned Commercial Industry by the 1988 Town Planning Scheme. That zone was described in the scheme as intended to cater for showroom and service industry activities in high access areas outside the central business area. Purposes for which buildings or other structures might be used without Council's consent included retail showrooms; "shops" - the purpose for which it was found the land was being used in the 2004 judgment - was a permitted use i.e. one for which land might be used only with the consent of the Council. Prohibited uses included display homes, duplex dwellings, dwelling houses, group housing, or rural workers' dwellings. Notwithstanding that zoning and those prohibited uses, the SLUP included the subject site within the area on the SLUP map designating it as an area to be developed essentially for residential purposes, that being the Preferred Dominant Land Use[3] for the site under the SLUP. Objective (1) of the SLUP stated, inaccurately regarding the subject site as a preferred residential area, that the existing residential areas throughout the Shire "have generally been recognised by appropriate residential zonings on the Town Planning Scheme maps." Objective (6) of the objectives for residential areas in the SLUP included limiting the expansion and impact of industrial and commercial uses in the residential area.

[8] Regarding Commercial Areas on the SLUP map - which included the appellant Leda's retail centre site, designated thereon as both a sub-regional retail centre and a future regional retail centre - Objective (2) relevant to commercial areas declared a goal to recognise, reinforce and consolidate the role of the existing and future retail development occurring along Morayfield Road as a dominant retailing area. It was further declared in (2)(a) that "Council will encourage new retail development within or adjacent to land committed for such purposes." Objective (3) approved what was described therein as a hierarchy of retail facilities, and included the description in 3(a)(ii) that the Council would support "[t]he continued development of the Morayfield Road area as an existing subregion retail centre... to complement the operations of the future regional retail centre". The Morayfield Road area referred to would have been the site of Leda's retail centre. Objective (4)(a) described preference being given to those developments which consolidated and reinforced the existing commercial and retail areas.

[9] Had the subject site been included in the Commercial Area on the SLUP map, that would have been consistent with the site zoning. Mr Hinson SC, for the respondent, pointed to the statement in Objective 4(b) for Commercial Areas, that "[e]xpansion of existing zoned areas not designated on the Strategic Land Use Plan Map will be assessed on the individual merits of the application having regard to the needs of the community and the proposal's effect on the existing facilities." He submitted that this recognised that the existing zoning was not the same as the designated areas on the SLUP map; and the subject site was an existing commercial and retail site. Inclusion of the site in the SLUP area in which the preferred dominant land use was residential was inconsistent with its zoning.

[10] The DCP referred in its introduction to the SLUP and the latter's Objective 2 for commercial areas, and to the Council's intention to recognise, reinforce and consolidate the role of the existing and future retail development occurring along Morayfield Road as a dominant retail area. The DCP map included the subject site within Special Planning Area 1, described in the DCP as "an area of historic rural residential type development, however it is of a size and configuration where further subdivision is possible; subsequent provisions of the DCP seek to regulate that potential."[4] The DCP described 13 different designations of what were described as dominant land uses, of which one was "regional shopping centre", another "support commercial", and a third "industrial". The large Bunnings Warehouse at the intersection of Morayfield and Walkers Roads, described in the 2005 judgment, also fell within Special Planning Area 1 on the DCP No 6 map; part of that site was also zoned as Commercial Industry in the 1988 Town Planning Scheme.

[11] The Council granted the approval for a material change of use of the subject site on 21 September 2004. Because the 1988 Town Planning Scheme was a transitional one under the IPA, then pursuant to s 6.1.30(3)(b) of the IPA, the Council was obliged to decide the material change of use application under ss 4.13(5) and (5A) of the Local Government (Planning and Environment) Act 1990 (Qld) (the "PEA"), repealed by the IPA. Section 4.13(5A) of the PEA provided:

"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

[12] The learned Planning and Environment Court judge was not persuaded there was any conflict with the residential area strategy appearing in the SLUP or the associated residential objectives in it, because the learned judge considered that the zoning under the original Town Planning Scheme meant that those residential area objectives and strategies had no true relevance.[5] The learned judge also considered that Makro and the Warehouse were not "discount department stores" as was contended to the judge by Leda, who argued any such stores should be situated in the primary retail areas so designated in the DCP, (i.e. the Leda site) and consistently with the hierarchy approved of in the SLUP. But the judge did not consider that the presence of those shops in the existing structure on the site created a regional or sub-regional shopping centre at it. The judge also considered that the tenor of the SLUP and its associated documents was to encourage retail development within or adjacent to land committed for those purposes, in a way which consolidated and reinforced existing commercial and retail areas. While the principal aim of the DCP was to encourage the establishment of only one integrated regional shopping centre in Morayfield, which had been achieved in the centre conducted by Leda, the presence of the Makro and Warehouse stores did not change or undermine that goal. The judge considered that if conflict arose it was between the proposal to use the land in accordance with the zoning, and the planning objectives and designation under the SLUP.

[13] The learned judge referred to the express aspirations in the SLUP for the establishment of a hierarchy of retail facilities, including the establishment of a regional retail centre at Morayfield.[6] The judge also referred to the recognition in the SLUP of the existence of areas zoned commercial which were not designated on the DCP plan as commercial, and to the provision (in Commercial Objective (4), implementation measure (b)) for assessing expansion of those existing zoned areas having regard to the needs of the community. The judge then referred to the SLUP (implementation measure (4)(a)) encouragement of "those developments which consolidate and reinforce the existing commercial and retail areas, for which this site is zoned." (My italics). The applicant complains that the italicised words were relevantly a misdirection by the learned judge, because the SLUP plan showed existing commercial and retail areas, and Commercial Objective (4)(a) did not include those italicised words. But the learned judge, immediately before that part of the reasons for judgment, had made clear that the judge understood very clearly that areas - such as the subject land - zoned as commercial industry were not included on the SLUP plan as Commercial Areas. The point the learned judge made as to zoning was accurate.

[14] The learned judge considered that the application for a material change of use did not conflict with the SLUP or DCP for the reasons described, namely irrelevance (regarding the residential goal) because of the zoning; and no inconsistency in fact, in the judge's view, with the commercial objectives of the SLUP or DCP. The judge added that at the highest any perceived conflict could arise only by reference to those parts of the planning documents which concerned the retail hierarchy, and resulted from what the judge considered to be an unduly constrained reading of parts of that scheme.[7] The judge also considered that in any event if there was a conflict with the SLUP or DCP, there were sufficient planning grounds to justify approving the application despite that conflict.

[15] I respectfully consider that conclusion to have been unavoidable. As the learned judge remarked, a major consideration was simply the zoning of the subject land, and the overwhelming unlikelihood that any land owner would contemplate attempting to have the land zoning changed to residential. It is a very large block located on and with high exposure to Morayfield Road, which already contains major retail developments over its considerable length. The judge considered that parts of the planning documents had simply been overtaken by events and that the planning arrangements contained in them, as they applied to the site, would achieve nothing of what they were intended to achieve. The judge remarked on the approval in 2005 of extensions to the Bunnings site, which was designated partly Residential and partly Open Space under the SLUP; just before the introduction of the DCP, the Council had approved a rezoning of that site from Special Rural to Commercial Industry. The judge also concluded that the development asked for on the subject site was readily accessible and convenient to users, and satisfied an established need, while providing no adverse impacts, economic or otherwise; and that there were plain benefits in providing a wider choice of shopping venues and a greater range and competition, and, of course, employment. The judge held those factors were all relevant planning grounds which, in concert, were sufficient to overcome any conflict which existed with the SLUP and DCP.

[16] The SLUP Commercial Objective (5) includes the need to discourage applications that would create ribbon development. The applicant did not contend to this Court or the Planning and Environment Court that that Objective was relevant.

[17] Section 4.1.56 of the IPA allows a party to appeal to this Court from a decision of the Planning and Environment Court, with leave, on the ground of error or mistake in law, or that the Planning and Environment Court either had no jurisdiction to make, or exceeded its jurisdiction in making, the decision. Mr Gore QC, senior counsel for the applicant, restricted his argument to asserted errors or mistakes in law, which he contended were made in relation to each of five primary issues identified in the applicant's argument in the Planning and Environment Court and in this Court.

[18] This was labelled as "the 1993 strategic plan conflict issue", and the identified errors were:

• the description by the learned judge that Jeanfern's proposal was to use the land in accordance with the zoning;

• a view attributed to the learned judge that zoning took precedence over a strategic plan;

• in holding there was no conflict between Jeanfern's application and the strategic plan.

[19] Argument on the first error stressed the description in the 1988 Town Plan of the Commercial Industry zone as one intended to cater for showroom and service industry activities, and the accompanying submission that shops of the size and influence of the Warehouse and Makro were not intended for that site, given the clear enough intention in the 1988 planning scheme that shops of that size and scale be developed in what was designated therein as the central commercial zone (where the Leda site is), the inclusion of Leda's subregional retail centre in that zone in the 1988 planning scheme and in the Commercial Area in the SLUP plan, and the SLUP provisions describing a hierarchy of retail facilities. Mr Gore QC made clear and carefully developed argument to this Court on that ground, and while I agree with the essential logic of the argument, I do not agree that it proved a conflict between Jeanfern's application to use the site as a shop and the SLUP or DCP. This is simply because Objective (4) of the commercial objectives, in implementation (b), referred to by the learned judge, makes provision for expansion of existing zoned areas not designated on the SLUP map (as commercial areas) to be assessed on the individual merits of the application. Since argument in this Court was confined to the terms of the 1988 Town Planning Scheme, the SLUP, and the DCP, and the Court only taken in a very general way to any evidence, conflict was not established.

[20] Mr Gore QC was on stronger grounds in his submission that there was conflict between the application and the provisions of the SLUP, namely the general intent declared therein that the land be developed essentially for residential purposes, with non-residential uses being limited to uses "of a minor nature or ancillary to a residential area" such as "local shops" or "general stores".[8] The application did conflict with those objectives. I respectfully disagree with the view of the learned judge that the SLUP and the DCP were not "relevant" strategic plans within the meaning of s 4.13(5A) of the PEA. The judge so held because the residential area strategy of both had been overtaken by events and was unachievable in light of the site zoning. I consider that nevertheless, they were still strategic plans that were relevant to the application; although their deficiencies might not stand in the way of a finding that there were sufficient planning grounds to justify approving the application despite the conflict with them.

[21] Mr Gore QC devoted a good deal of time in his oral submission to citation of planning authority, referred to to demonstrate error in a proposition quoted from the judgment of the Planning and Environment Court in Cornerstone Properties Ltd v Caloundra City Council [2004] QPELR 54[9] to the following effect:

"It is also well established that when there is a conflict between the zoning of the site and the planning objectives and designation in a forward planning document (such as a strategic plan or DCP) it is the zone that ought to prevail as it is the zone (in transitional planning schemes) which determines development rights."[10]

[22] Those authorities were cited to show that conflict between a development application and strategic plan was often fatal to the application, even prior to the introduction of s 4.13(5A) and its counterparts[11] in 1992.[12] Those decisions included McLennan v Maroochy Shire Council [1990] QPLR 113 ("A Strategic Plan is of importance when assessing a rezoning application as it is a forward planning strategy, for the future development of a local authority area."[13]); Duncombe v Caboolture Shire Council [1990] QPLR 257 ("As has been said repeatedly, this Court is not the planning authority for this area and it is my view that it would be inappropriate for the Court to approve a proposal which is squarely in conflict with the formally expressed planning strategies of that authority."[14]); McPherson v Caloundra City Council [1990] QPLR 272 ("the Strategic Plan and the Strategic Plan Map are legitimate planning tools adopted by a Local Authority for the future planning of the Local Authority Area. The Local Authority in those circumstances is planning ahead and endeavouring to direct its future planning process in an orderly manner."[15]); Beck v Atherton Shire Council [1991] QPLR 56 ("The Court has however, repeatedly stressed the importance of strategic planning and the need to respect and support the integrity of the important planning tool which the Strategic Plan is. There may be cases where a departure from the Strategic Plan could be justified; where, for example, the planning strategies which it represents, having been overtaken by events (or for some other reason), clearly no longer have any application; or where it can be demonstrated plainly the land has been given a designation on the basis that was and remains invalid"); ("The significance of strategic planning, particularly on rezoning applications, has been recognised by the Court on many occasions. Since the forward planning documents of a Local Authority are indicative of the intent of a planning authority as to the future preferred form of development that it sees for its Local Authority area, considerable weight ought to be given to the provisions of forward planning documents of a Local Authority.").

[23] Reference was also made to the decision of this Court in Cairns City Council v Hessels (1998) 98 LGERA 404, and the observation therein by the Court that:

"The planning schemes make it clear that land in a residential zone with an 'urban designation' might not be suitable for subdivision, and the planning schemes provide criteria for determining whether subdivision of such land should be permitted."[18]

Mr Gore QC argued that deferential approach to a town planning scheme was consistent with this Court's later decision in Grosser v Council of Gold Coast City (2001) 117 LGERA 153[19], in which White J quoted[20] an earlier decision of this Court in Holts Hill Quarry P/L v Gold Coast City Council & Ors [2000] QCA 268[21], in which earlier decision this Court quoted with apparent approval from Quirk DCJ in Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 to the following effect:

"It should not be necessary to repeat it but this Court is not the Planning Authority for 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... has... adopt[ed]..."[22]

[24] The extensive citation of judgments (I have not quoted from all of those to which Mr Gore QC referred) supported his submission that there is no principle established in the Planning and Environment Court that a zoning "prevails" over a strategic plan or a DCP. But despite the time devoted to the argument, the learned Planning and Environment Court judge did not decide the appeal to that Court on the basis that the zoning determined the development rights and prevailed over the strategic plan. The reference by the learned judge to the statement in Corner Stone Properties was made in the context of determining whether there was a conflict between the provisions of the SLUP (about commercial and retail strategies), and the application; and the learned judge referred to Cornerstone Properties as an acknowledgment of the relevance of the zoning. Then followed the part of the judgment in which the judge quoted the SLUP provisions recognising that there were zoned areas not designated on the SLUP map as commercial, and providing for the provision of the expansion (of those zoned areas) in certain circumstances, assessed on the merits of the individual application.

[25] This issue was identified by the applicant as "the DCP 6 conflict issue", in which the asserted error of law was the conclusion that the application was not in conflict with the DCP. The submission was that the application proposed commercial development of a substantial scale on land not designated for that purpose. The submissions on that issue were the same as on the first, and so are my conclusions.

[26] This issue related to a lack of conflict between the Caboolture

Shire's draft planning scheme ("the DPS") and the application, as at the date of the hearing in the Planning and Environment Court before the 2005 decision. Under the DPS[23], Jeanfern's site is in the metropolitan centre zone, in precinct 5. In its original form, the assessment table for that zone provided that a shop was an "inconsistent use" in precinct 5, and this was repeated in a table of "specific outcomes" in the Planning Area Code. On the other hand, the same tables contemplated retail showrooms in precinct 5, and the Planning Area Code stated that for that precinct "retail showrooms and services industries are the predominant uses". That is, Jeanfern's application conflicted with the DPS in its original form; Jeanfern lodged a submission to the Council, arguing that there was no need to differentiate between retail showrooms and shops. The Council planner who reported on the submission - after the Council had granted Jeanfern's application for a material change of use, and while the appeal against that by Leda was pending in the Planning and Environment Court - supported it, only because the decision to make shops inconsistent uses in precinct 5 had been originally made prior to the Council's granting of Jeanfern's application for a material change of use. The Council planner suggested that, for consistency, the DPS should be amended to include shops in that precinct, and ultimately the recommendation approved was that shops and retail showrooms in the precinct be consistent uses only if they had individual tenancy floor areas of at least 500m2.

[27] What Leda complains of as an error in law was the fact that the learned primary judge relied upon the 2004 DPS in its amended form, by the remark that "[t]he Draft Plan is unequivocal in its support for the proposed development in circumstances where the respondent Council must be taken to be aware of the history of the site and the litigation involving it, and has amended that Plan so as to support it."[24]

[28] Mr Gore QC submitted both to the learned primary judge and to this Court that the Council's decision to amend the DPS was colourable, but it is only fair to all involved in making the decision to amend the DPS to say that there was no evidence at all to support that submission, which depended solely upon the sequence of the events. This Court was shown no reason to consider that the Council and its advisers had not acted on a view, held with integrity, that consistency in decision making was desirable. Nevertheless, I respectfully agree that in the circumstances the learned Planning and Environment Court judge ought not to have placed any reliance upon that amendment, since it assumed the correctness of what the judge was being asked to decide, and was expressly reached only because of a desire for consistency. As Mr Gore submitted, the approval under appeal was either right or wrong; if wrong, it did not become right because the Council chose to reinforce it by amending the 2004 DPS. I agree that the primary judge, in those circumstances, should have placed no weight on the amendment, but am satisfied the merits of the amendment have so little weight that that error should not result in leave being given.

[29] The error asserted under the issue given this heading was the description by the learned judge that the evidence "revealed a significant planning need, albeit by reference to past trading in those stores without planning permission", that the development had created "no adverse impacts, economic or otherwise", and that it was clear that "[w]ithin the existing complex ....the existing tenants derive[d] benefit from the operations of Makro and the Warehouse".[25] Mr Gore QC complains that the reference to that evidence contravened what he described as a principle in town planning cases that while prior unlawful use should not disqualify an applicant for an approval to regularise the use, nor should any advantage accrue to a wrongdoer as a result of the wrongdoing. He particularly referred to the remarks in Kouflidis v City of Salisbury (1982) 49 LGRA 17 by King CJ, with whom Mohr J agreed, that:

"Any argument based either directly or indirectly upon the unlawful use should be firmly rejected. For instance, the argument put in the present case that the patronage given the unlawful business by the public indicates a local demand for the facility and is a consideration in favour of planning consent, should be rejected as an attempt to gain an advantage from the unlawful use by erecting an argument on the basis of that unlawful use." [26]

[30] The learned judge referred to that principle when remarking that the evidence "revealed a significant planning need, albeit by reference to past trading in those stores without planning permission", in the context of a reference to a larger body of evidence, including the concession by witnesses called for Leda that there were no vacant retail areas in Morayfield Road where a Makro or Warehouse store could take up a tenancy in the near future; and that an inspection of the stores supported (a named witness' evidence) that they cater for persons of limited means and meet a need exhibited by that part of the community in the Shire. The learned judge later went on to state:

"Nor, for the sake of completeness, can evidence of a use previously carried on unlawfully (as occurred here before the proceedings in 2004) be seen in this instance as a significant impediment to later approval. The proper approach in those circumstances was summarised by Brabazon QC DCJ in Westfield Management Ltd v Pine Rivers Shire Council[27] at [22]:

In my opinion, it is appropriate to look at all factual matters, even those created by a period of unlawful use. They may be for or against the application. To consider them is not to give an applicant a benefit because of improper conduct. Rather, it is to use the best available information about the present merits of the application. The real principle is to ensure that such an applicant receives no benefit merely because the use is already in place. Likewise, hardship to an applicant will usually be irrelevant.

Save in the very limited respects already mentioned no weight has been given to the earlier unlawful use, this being a case in which the parties' contentions are to be considered primarily by reference to the planning documents and the legislation."[28]

[31] It is clear that the learned judge was well aware of the principle referred to by Gore QC, and cautious about breaching it; the judgment by Brabazon QC DCJ in Westfield Management also refers to a submission that the settled practice in Queensland is to investigate the facts up to the present time, including any unlawful use. Brabazon QC DCJ referred, inter alia, to the decisions in Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 at 208, and to Mt Gravatt Bus Service v Brisbane City Council [2002] QPELR 35 at 36. Those references are to cases in which Planning and Environment Court judges considered it inappropriate to allow any advantage to an appellant as the result of the commencement of a use contrary to the provisions of a planning scheme, but recognised that the fact a use was already underway had some consequences which could be regarded as relevant in the determination of an appeal to that court. One was that it allowed a real assessment of the impact that the proposal under appeal would have on the amenity of the area and on environmental matters, noise nuisance, and the like. I respectfully agree with that approach, and that the learned judge in this matter was entitled to conclude that the development had created no adverse impacts, economic or otherwise, on the evidence; and this Court was not told on appeal of any constraint placed on the use to which the learned judge might put the inspection of the premises. I agree with the learned judge's own implicit concession, that it would have been preferable to not rely upon evidence of a planning need established by past trading without planning permission, but I consider that to the extent that the learned judge erred in so doing, no error as to the proper principle was demonstrated, and the fact the judge did err in applying it had so little effect on the outcome that that is not a ground for giving leave to appeal.

[32] Mr Gore QC so described the argument that the learned Planning and Environment Court judge erred in holding there were sufficient planning grounds to justify approving the application, despite any conflict between it and the SLUP or DCP. He contended the errors of law were demonstrated in the various matters on which the learned judge had relied as planning grounds, either in placing reliance on those, or else in the manner in which the judge described them. These were:

2. the proposition that zoning will always attract substantial weight;

3. the improbability of the site being used for some lower order of shopping premises, such as a neighbourhood shop;

5. the possibility that there was an error in DCP 6;

7. the absence of adverse impacts, economic or otherwise; and

8. the benefits of a choice and a greater range, including the benefits existing tenants at the Morayfield Supa Centre already derived.

[33] Mr Gore QC criticised the reasoning in relation to each of those. Regarding the first, his submission complained that the learned judge had really described it as a commercial consideration rather than a planning one, by the statement, at [37] in the reasons for judgment, that no sensible land owner would contemplate attempting to re-zone the land back to residential. Apart from complaining that a re-zoning to residential was not a re-zoning "back", but a change to a zoning contemplated by the forward planning documents (the SLUP and DCP), the submission was that this was not a "planning ground". But that criticism rather overlooks the common sense proposition stated by Quirk DCJ in Stubberfield v Redland Shire Council & Anor [1993] QPLR 214, where His Honour wrote:

"It would appear fairly fundamental that the land's zoning....was a matter of considerable weight and more than capable of amounting to a planning ground sufficient to justify approving the application despite its apparent conflict with the Development Control Plan."[29]

The site zoning has to be regarded, when considering planning grounds, with respect to its size, position on Morayfield Road, and the other existing and likely development on that road; all matters the learned judge took into consideration when considering the zoning. I do not consider an error of law was shown.

[34] The second complaint was the more general proposition that the judge erred in attributing substantial weight to zoning, when the issue was whether that particular application ought to be approved, given the retail strategy in the planning instruments. Regarding that submission, the learned judge cited those parts of the planning instruments which acknowledged the possibility of expanding commercial development in areas not designated commercial on SLUP, and analysed the retail strategy in those instruments. I do not agree that an error was shown.

[35] Regarding ground 3, the complaint was that the observation by the judge that parts of the planning documents had been overtaken by events had referred to a remark by Robin QC DJC in Jensen & Bowers Pty Ltd v Redland Shire Council [2004] QPELR 86.[30] Mr Gore QC submitted that Robin QC DCJ had said in Jensen & Bowers that the fact that planning arrangements were unlikely to achieve the intended result did not determine the matter of conflict, or otherwise, but only tended to lighten the (developer's) task of demonstrating sufficient planning grounds. Acknowledging that as accurate, no error was demonstrated by the learned judge in the instant matter having identified and remarked upon the improbability of the site being used for some corner store variety of shopping.

[36] I agree with the submission that the learned judge ought not to have considered item No 4. Regarding item No 5, the learned judge said that neither the SLUP nor its supporting study mentioned the site, which was the largest block of land zoned Commercial Industry in the study area, and nor did either of those mention the likely development that might occur on it as a consequence of its existing zoning. For that reason, the judge thought it impossible to ignore the fact that in designating the land for residential purposes the DCP might have been drafted in error; those observations were made in support of the learned judge's finding that there was no clear conflict between the DCP and the application. The judge did not take the possibility of error in the DCP into account as a planning matter positively favouring the application.

[37] For reasons already expressed, I agree with Mr Gore QC that item No 6 ought not to have been taken into consideration, nor, in item No 8, the benefit that existing tenants already derived from the operations of Makro and the Warehouse. But the judge was entitled to take notice of the lack of adverse impacts on the amenity of the area, provided the judge was satisfied that that was unlikely to change in the foreseeable future, and also to take into account the benefits of choice and a greater range of shopping venues and competition. Those are relevant planning matters.

[38] Mr Gore QC did establish error in the learned judges relying on some of the specified matters as relevant planning considerations favouring the application, but I am satisfied the permissible ones established strong planning grounds justifying approval, and for that reason would not grant leave.

The "conflict with the previous decision" issue

[39] Mr Gore QC complained that in the 2005 judgment the learned judge, who coincidentally was the same judge as in the 2004 judgment, had failed to make findings consistent with those in the 2004 judgment. In the 2004 judgment the learned judge had written that The Warehouse and the Makro stores each had something of the flavour of discount variety stores[31], whereas in the 2005 judgment the learned judge declined to accept the submission that each was a "discount department store". I was not persuaded that any actual inconsistency in fact was shown by those two different conclusions, or any error of law.

[40] I would dismiss the application for leave to appeal, and order the applicant pay the respondent's costs of and incidental to the application to be assessed on the standard basis.

[41] PHILIPPIDES J: I have had the considerable advantage of reading the reasons for judgment of Jerrard JA and agree that the application for leave to appeal should be dismissed for the reasons stated therein.

[1] Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd; Woolworths Ltd v Caboolture Shire Council & Makro Warehouse Pty Ltd [2004] QPEC 15.

[2] This history is taken from the judgment of the Planning and Environment Court the subject of this application, Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56.

[5] Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56; BD Nos 3950 of 2004 and 3492 of 2004, 26 July 2005, at [17].

[6] Commercial Objective (2)(b) in the DCP; reproduced at AR 234.

[7] Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56 at [36].

[8] Objectives 5 and 10 of the 1993 SLUP.

[9] [2004] QPELR 54; Appeal No 17 of 2003, 20 August 2003.

[10] [2004] QPELR 54 at 62.

[11] Sections 4.4(5A), 4.7(5A) and 5.1(6A) of the PEA.

[12] By the Local Government (Planning & Environment) Amendment Act 1992 (Qld) (No 37).

[13] McLennan v Maroochy Shire Council [1990] QPLR 113 at 116-117 per Row DCJ.

[14] Duncombe v Caboolture Shire Council [1990] QPLR 257 at 259 per Quirk DCJ.

[15] McPherson v Caloundra City Council [1990] QPLR 272 at 279-280 per Row DCJ.

[16] Beck v Atherton Shire Council [1991] QPLR 56 at 59 per Quirk DCJ.

[17] Bowden & Ors v Brisbane City Council & Anor [1991] QPLR 271 at 284 per Row DCJ.

[18] Cairns City Council v Hessels (1998) 98 LGERA 404 at 409.

[19] [2001] QCA 423; Appeal No 8502 of 2000, 9 October 2001.

[20] Grosser v Council of Gold Coast City [2001] QCA 423; (2001) 117 LGERA 153 at 163.

[21] Appeal No 7006 of 1999, 14 July 2000.

[22] Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209 at 211.

[23] That draft scheme actually came into force on 12 December 2005 as a planning scheme adopted under the IPA.

[24] Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56 at [40].

[25] Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56 at [34] and [42].

[26] (1982) 49 LGRA 17 at 20.

[27] (2005) QPEC 015.

[28] Leda Holdings Pty Ltd v Caboolture Shire Council & Anor; Jeanfern Pty Ltd v Caboolture Shire Council [2005] QPEC 56 at [49] to [50].

[29] Stubberfield v Redland Shire Council & Anor [1993] QPLR 214 at 216.

[30] Whereas the facts of that case were distinguishable.

[31] Woolworths Ltd v Caboolture Shire Council & The Warehouse Group (Australia) Pty Ltd; Woolworths Ltd v Caboolture Shire Council & Makro Warehouse Pty Ltd [2004] QPEC 15 at [8].