1. The decision by the Burnie City Council to grant a permit for Development Application DA2024/32 subject to conditions is affirmed.

1. Any application for an order for costs in this appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.

Environment and planning - Planning appeal - Proposed change of use and development of a bottle shop - Whether discretionary use should be refused having regard to zone purpose statements - Whether proposal will compromise or distort the activity centre hierarchy.

Land Use Planning and Approvals Act 1993;

Gillard v Launceston City Council [2024] TASSC 37; Hobart City Council v Rich Tapestry Pty Ltd (ACN 667 999 055) [2024] TASSC 54;

Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41;

Raff Angus Pty Ltd v Resource Management & Planning Appeal Tribunal [2018] TASSC 60;

Boland v Clarence City Council [2021] TASFC 5; Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] TASFC 5;

Carthew-Wakefield v Sorell Council (No.2) [2024] TASCAT 188.

First Respondent: G Tremayne - Tremayne Faye Rheinberger

1. The appellant has appealed a decision by the Burnie City Council to grant a permit for the change of use of an existing bulky goods sales showroom to a bottle shop, together with signage, onsite parking and associated works.
2. The appellant has raised two grounds of appeal:

Ground 1 - Discretionary Use (Clause 6.8.1(a), 6.10.2, 17.2 and 17.1) > > In exercising the discretion created by the proposed use being within a use class that is specified to be one which is discretionary under the Table for Uses, the proposed use should be refused having regard to the purpose statements for the Commercial Zone. > > Particulars > > 1.1 Cl.17.1.1 articulates that the purpose of the zone is: > > To provide for retailing, service industries, storage and warehousing that require: > > (a) large floor or outdoor areas for the sale of goods or operational requirements; and > > (b) high levels of vehicle access and parking for customers. > > 1.2 The application does not establish that the proposed bottle shop requires large floor area or outdoor areas for the sale of goods or operational requirements. > > 1.3 The application does not establish that the proposed bottle shop requires high levels of vehicle access and parking for customers. > > Ground 2 - Cl.17.3.2 P1 - Discretionary use > > The proposed use compromises or distorts the activity centre hierarchy having regard to: > > (a) the characteristics of the site; > > (b) the size and scale of the proposed use; > > (c) the functions of the activity centre and surrounding activity centres; > > (d) the extent to which the proposed use impacts on other activity centres.

1. The site is located on the corner of Marine Terrace and Hale Street in Burnie. It has an area of 2,873m² and contains a service station, fast food restaurant and drive through and a vacant building, which is the location for the proposed change of use.
2. The vacant building is detached from the other development on the site and has a gross floor area of 253m².
3. The site is fully developed and includes vehicular access from Marine Terrace, and parking infrastructure.
4. The site is in the Commercial Zone of the Tasmanian Planning Scheme - Burnie (the Scheme). The zone is regulated by cl 17.0 of the Scheme.

1. The proposal is for change of use to a bottle shop. There was no evidence as to the internal layout of the proposed bottle shop. It will use existing parking spaces on the site.
2. The proposal falls within the general retail and hire use class in table 6.2 of the Scheme. That use is a discretionary use within table 17.2 of the Scheme.

1. Ground 1 raises the zone purpose statement in cl 17.1 of the Scheme:

17.1 Zone Purpose > > The purpose of the Commercial Zone is: > > 17.1.1 To provide for retailing, service industries, storage and warehousing that require:

(a) large floor or outdoor areas for the sale of goods or operational requirements; and

(b) high levels of vehicle access and parking for customers.

17.1.2 To provide for a mix of use and development that supports and does not compromise or distort the role of other activity centres in the activity centre hierarchy.

1. Ground 1 relies on the approach explained by Blow CJ in Gillard v Launceston City Council [2024] TASSC 37 (Gillard). In that case his Honour dealt with provisions dealing with discretionary uses and developments in the Launceston Interim Planning Scheme 2015. Those provisions find their equivalents in clauses 6.8 and 6.10 of the Scheme.
2. Clause 6.8.1(a) of the Scheme provides a discretion to approve uses identified as discretionary in a use table, such as table 17.2:

The planning authority has a discretion to refuse or permit a use or development if:

(a) The use is within a use class specified in the applicable Use Table as being a use which is Discretionary.

1. Clause 6.10.2(a) provides regard must be had to relevant zone purpose statements in exercising that discretion:

In determining an application for a permit for a Discretionary Use the planning authority must, in addition to the matters referred to in sub-clause 6.10.1 of this planning scheme, have regard to:

1. In Gillard his Honour rejected the proposition that the only matters to take into account in determining an application for a discretionary use or development are the standards set out in acceptable solutions and performance criteria. At [26] his Honour said:

26. In this case, the planning scheme prescribed performance criteria and acceptable solutions in relation to five relevant considerations. It thus provided a reasonable level of predictability in relation to those five relevant considerations. But it also made it clear that the use of land in the General Residential Zone for a medical centre was discretionary. In my view the effect of the provisions as to the Use Standards in relation to the five relevant considerations was only to circumscribe the exercise of the discretion. If there were any other relevant considerations that were not the subject of Use Standards, then there remained a discretion.

2. His Honour observed that the relevant considerations that were the subject of use standards would, at least sometimes, not be the only relevant considerations. At [30]-[31] his Honour said:

30. However there is nothing unfair, disorderly or unsustainable involved in a planning authority or a tribunal, given a discretion to permit a particular use, being entitled to take into account relevant considerations that are not the subject of prescribed acceptable solutions or performance criteria. The existence of a limited and circumscribed discretion is in no way inconsistent with any of the statutory objectives that counsel sought to rely upon. > > 31. In my view it is quite clear that it was the duty of the tribunal to take into account any relevant considerations relied upon by either party that were not the subject of the Use Standards prescribed by cl 10.3 and, for that purpose, to have regard to the Zone Purpose Statements in cl 10.1.1 of the planning scheme as required by cl 8.10.2(a) thereof.

3. The cl 8.10.2(a) referred to by his Honour was the equivalent of cl 6.10.2(a) in the Scheme.
4. Where elements of the zone purpose statement are addressed by use or development standards those standards will cover the ground in respect to consideration of those elements and the discretion to grant or refuse a permit for the proposal is constrained by those standards.
5. Where a relevant consideration arising from zone purpose statements is raised by the appellant that is not addressed by the existence of relevant standards, we are required to have regard to those considerations in exercising the discretion to grant or refuse a permit for the proposal.

1. The Zone Purpose Statement for the Commercial Zone is found in cl 17.1. It has two parts, cl 17.1.1. and cl 17.1.2:

17.1.1 To provide for retailing, service industries, storage and warehousing that require:

(a) large floor or outdoor areas for the sale of goods or operational requirements; and

(b) high levels of vehicle access and parking for customers.

17.1.2 To provide for a mix of use and development that supports and does not compromise or distort the role of other activity centres in the activity centre hierarchy.

1. Clause 17.1.2 raises consideration concerning activity centres and the activity centre hierarchy that are directly addressed in the use standard in cl 17.3.2, which is the subject of ground 2. Following the approach in Gillard, there will be no residuary discretion in connection with cl 17.1.2.
2. The relevant considerations enlivened by ground 1 arise in respect to cl 17.1.1, being the purpose "to provide for retailing...that require[s]...large floor or outdoor areas for the sale of goods or operational requirements and...high levels of vehicle access and parking for customers".
3. Clause 6.10.2 requires that we have regard to this purpose in exercising our discretion. Generally, the requirement to have regard to a matter does not raise that matter to the level of a standard, but we must take the matter into account as a fundamental element of our decision making: Hobart City Council v Rich Tapestry Pty Ltd (ACN 667 999 055) [2024] TASSC 54 at [36].
4. The appellant's contention is that the proposed bottle shop is not in harmony with anything that is consistent with the purpose of the zone. He contends that the floor area of 253m² is not large when considered contextually against the area of the site and the floor area of other bottle shop formats.

1. Each of the parties called expert planning evidence: from Mr John Ayers for the appellant, Mr George Walker for the Council and Ms Kate Heckelmann for the second respondent.
2. Mr Ayers considered that the proposed bottle shop will not require a large floor area and that it does not propose outside areas for the sale of goods. He says that it will function as a small scale retail outlet. He considered that the proposed use will be of a scale which is no greater than that found in the Central Business Zone and Local Business Zone. He drew a distinction with large format bottle shops which typically range from 400m² to 1500m² and are located as standalone buildings or positioned within a large format retail complex. He observed that a traffic impact assessment forming part of the application noted an 8 car space allocation to service the bottle shop, which he considered does not represent a high level of parking required for the use.
3. Mr Walker observed that, on a macro level, the zone includes multiple existing retailing, service industry, storage and warehousing uses that have large floor and outdoor areas, achieving the zone purpose. On a micro level he considered that the physical characteristics of the site are restricted. The existing vacant building has a gross floor area of 253m² and the balance area of the site is fully developed. He noted that the operational requirements of a bottle shop typically align with the zone purpose in that the majority of retail stock is delivered in bulk on pallets and often remains on pallets for display purposes. Larger floor and outdoor areas are also typically required for a bottle shop, to store and break down palletised stock. Stock is often sold in cases or half cases requiring a larger floor area to stack and display stock. Mr Walker considered that stock would often remain in cases or packaged in boxes which would require customers to use a motor vehicle. The site has vehicle access and 23 existing onsite carparking spaces. He considered that the bottle shop would require high levels of vehicle access and parking for customers.
4. Ms Heckelmann considered that the proposal would align with the zone purpose by contributing to the mix of use and development expected within the Commercial Zone, providing a use which is of a scale and size commensurate to and compatible with the existing retail uses on the site at convenience-based scale, serving the needs of the local community. She considered that the proposal would be highly compatible with the mix of existing uses occurring within the surrounding Commercial Zone.

1. The Scheme provides no definition or measure for what might constitute a "large floor area" for the purposes of cl 17.1.19(a). The only standard in cl 17 relating to gross floor area that we were referred to by the parties is the acceptable solution of cl 17.3.3 for bulky goods sales, which requires a gross floor area of not less than 250m². The proposal would meet that acceptable solution. There is no equivalent standard specifically for the general retail and hire use. It is not apparent why a general retail use would be required to have a greater floor area than a bulky goods sales use.
2. Further, it would be surprising if the standard in cl 17.3.3 established an acceptable solution that is inconsistent with the zone purpose. That would be contrary to the approach to a performance based planning scheme described by Brett J in Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41 at [56]:

A performance-based system employs a top down approach, where the various levels of objectives and principles are eventually distilled into a practical test defined by performance criteria and acceptable solutions.

3. Objectives can provide context for standards: Raff Angus Pty Ltd v Resource Management & Planning Appeal Tribunal [2018] TASSC 60 [22]-[24], and acceptable solutions may provide context for performance criteria: Boland v Clarence City Council [2021] TASFC 5 [20]-[24]. Having regard to the purposive approach to interpretation of planning schemes explained in Saltwater Lagoon Pty Ltd v Glamorgan Spring Bay Council [2022] TASFC 5 at [19]- [20], standards may also provide context for consideration of the residual discretion arising in connection with zone purpose objectives. The fact that the proposal will comply with the acceptable solution of cl 17.3.3 does not mean that it is automatically consistent with the zone purpose described in cl 17.1.1, as cl 17.3.3 is clearly directed at the purpose identified in cl 17.1.2. However, it is the only indication given by the Scheme as to what might be considered to be a large floor area for the purposes of the zone. The constraints imposed by the existing development on the site are also relevant to consideration of the discretion.
4. Clause 17.1.1 provides for retail storage and warehousing that requires large floor areas and high levels of vehicle access and parking. The permitted uses are bulky goods sales, emergency services, equipment and machinery sales and hire, service industry and storage, all of which are uses that might normally require large floor or outdoor areas. Discretionary uses in the zone include business and professional services, educational and occasional care, food services, general retail and hire and research and development uses that may often require more modest floor areas. The site contains a number of existing uses. If cl 17.1.1 was applied literally as a standard it would effectively sterilise the existing vacant building for any of the discretionary uses set out in cl 17.2, which would restrict the commercial use of the vacant premises to the permitted and no permit required uses.
5. The Scheme also provides no definition or measure for what might constitute "high levels of vehicle access and parking for customers" for the purposes of cl 17.1.19(b). The proposal, with eight dedicated parking spaces, will satisfy the parking requirement for the use in cl C2.5.1 A1 and table C2.1 in the Parking and Sustainable Transport Code of the Scheme, requiring one space per 30 m² of floor area. A traffic impact assessment forming part of the development application estimates traffic generation by the proposal is likely to be in the order of 350 vehicles per day, a proportion of which might be shared journeys also utilising the other development on the site, with a peak of 35 per hour. It also states that there is little empirical data available on traffic generation of bottle shop developments. As Mr Walker observed, the nature of sales from the proposed bottle shop often might require customers to use a motor vehicle. We had no comparative levels of traffic generation for other retail uses. What constitutes high levels of vehicle access and parking will be a protean concept depending on context. For a single retail use the traffic generation identified by the traffic impact assessment might be considered at a high level.
6. Gillard identifies a residual discretion to be exercised taking into account as a fundamental element of our decision making relevant factors raised by the zone purpose and not addressed by standards. The relevant elements of the zone purpose identified by the parties are general statements that are broadly contextual and matters to be taken into account at a high level, not rigidly applied as standards. We are satisfied that having regard to the purpose of the zone, insofar as the purpose is not covered by a standard or standards, the discretion should be exercised in favour of granting a permit.

1. Ground 2 raises compliance with cl 17.3.2 of the Scheme, which provides:

That uses listed as Discretionary do not compromise or distort the activity centre hierarchy.

A use listed as Discretionary must not compromise or distort the activity centre hierarchy, having regard to:

(a) the characteristics of the site;

(b) the size and scale of the proposed use;

(c) the functions of the activity centre and the surrounding activity centres; and

(d) the extent that the proposed use impacts on other activity centres.

1. Clause 17.3.2 has no acceptable solution, and the proposal must satisfy the performance criteria P1.
2. The test in P1 is that the use must not compromise or distort the activity centre hierarchy. In considering that test, regard is to be had to the four elements listed (a)-(d) in P1.

1. The first step is to identify the activity centre hierarchy. 'Activity centre' is defined in table 3.1 of the Scheme as:

Means a place that provides a focus for retail, commercial, services, employment, and social interaction in cities and towns.

2. 'Activity centre hierarchy' is defined in table 3.1 as:

Means the activity centre network or hierarchy referred to in a relevant regional land use strategy. Regional land use strategy is defined as having the definition in the Land Use Planning and Approvals Act 1993.

3. Section 3 of the Land Use Planning and Approvals Act 1993 defines 'regional land use strategy' as the regional land use strategy declared under s 5A of that Act in relation to a regional area. Section 5A provides a procedure for declaring a regional land use strategy.
4. The relevant regional land use strategy is Cradle Coast Regional Land Use Strategy 2010-2030 (CCRLUS).
5. CCRLUS was declared by the Minister for Planning on 28 February 2024. It is the third version of a declaration initially made in 2011. The introduction to CCRLUS states that it establishes the Cradle Coast Regional Land Use Planning Framework and is set out in three parts. Parts A and B describe the context within which the strategy operates. Part A is headed "About the Cradle Coast Regional Land Use Planning Framework" and is described as providing background and describing a desired future for the region. Part B is headed "Knowing Our Place" and is described as providing a description of key regional characteristics and land use issues at the time of drafting. Part C is headed "The Cradle Coast Regional Land Use Strategy 2010 to 2030" and contains policies to implement the framework.
6. CCRLUS does not include the terms 'activity centre network' or 'activity centre hierarchy'. Part C, which contains the strategic policy, does not clearly identify an activity centre hierarchy. Part B contains a description of activity centres in the region, set out in tabular form in cl 4.7 that appears to be a ranking based on level of activity.
7. At first blush it might appear that only Part C contains the regional land use strategy, and that either there is no relevant activity centre hierarchy, such that cl 17.3.2 has no operation, or that the hierarchy must be divined from the policies in Part C, which was the contention by the appellant. However, a better approach is to read the document as a whole, noting that the title of the entire document contains the phrase 'land use strategy', the Minister's declaration is contained at the start of the document and Parts A and B clearly inform Part C. In particular, Part B sets out the existing circumstances of the region against which the policies in Part C are to apply. It is the part of the document in which an activity centre hierarchy might logically be described. For the reasons set out below we find that the table in cl 4.7 of CCRLUS is an activity centre hierarchy for the purposes of cl 17.3.2.
8. Part B contains an analysis of settlement pattern which, in cl 4.5, it describes as:

The established settlement pattern presents as a network of compact and contained, relatively close spaced, and well connected centres of small to medium size, located within an immediate matrix of farm, forest and coastal landscapes, and each within individual identities.

9. Clause 4.7 states that "continued sustainability of regional settlements is a key consideration for the Framework". It observes that regional planning frameworks frequently introduce a hierarchy of activity centres to manage disposition of certain land uses. It states:

Activity centre policy is intended to encourage particular types of activities to co-locate under a designated hierarchy in which settlement centres are described by size, type, location and distribution. The concept involves directed action to discourage development which is outside this model. The rationale is to improve the accessibility, productivity, complementarities and efficiency in the use of large scale and single-height activities to meet a wider population needs. The model retains ability to provide a single local destination that will meet the majority of people's daily needs.

10. It goes on to observe that there is no single dominant centre within the Cradle Coast Region to operate as the preferred location for higher order services, and that the arrangement of settlement between Port Sorell and Wynyard means that that area tends to function as a collective activity centre with the majority of regional scale activities being provided from Burnie and Devonport.
11. Part B analyses the settlement pattern in the region and expresses an aim to "sustain provision of higher order social and economic services for the Region into established centres in Burnie and Devonport and to retain and reinforce the role of Smithton, Queenstown, Wynyard, Currie, Ulverstone, Latrobe and Sheffield as service centres with a district orientation and capacity to satisfy local needs". It goes on to say:

It is important to avoid commercial and community services for regional and sub-regional or district scale relocating or emerging in local centres. Limit upon nature and size is required for activity in local centres in order to not only ensure efficient allocation of land and resources, but to also further reinforce the established key role of large centres in meeting district and regional needs.

12. Part B then goes on to describe the role and function for each of the main centres within the region for that purpose. It summarises the description of activity centres in the region in the table in cl 4.7:

Provide services and facilities which deliver for needs of the local community together with a wider regional or subregional catchment. These towns offer higher order services reliant for operational efficiency on a population of regional or sub-regional size or on a single or limited number of locations in education, health, culture and entertainment, community support, professional and personal service, comparison and specialty retail, sport and recreation, and diversity in housing options. Major centres are primary nodes for industry, business, public sector, and transport activities with a regional focus; and offer a range of employment options.

These towns have a larger population base for a discrete part of the Region and provide services and facilities which meet needs of the local community and an immediate discrete hinterland and may also contain some activity which is of a regional scale. These towns offer a range of services in education, health, culture and entertainment, community support, personal service, and convenience and comparison retail options where sustainable service levels can be supported across a number of sites. District centres are to offer a range of employment and business opportunity.

Latrobe, Sheffield, Ulverstone, Wynyard, Smithton, Queenstown, Currie

Local centres are of varying population size and cater primarily to the immediate needs of the local community in housing, education, health, culture and entertainment, community support, personal service, and convenience retail options at a level which does not service a regional or sub-regional population. Employment and business options are sized and orientated to the local population. This may involve economic activity dependent on a strategic or resource based need.

Railton, Port Sorell, Forth, Gawler, Penguin, Sulphur Creek, Ridgley, Somerset

Small centres are places which include a singular primary purpose derived from natural attributes of the locality and support resource development or tourism, and may support a permanent population unrelated to that activity. Specialty centres also operate as local centres and provide convenience services for the local community

Rosebury, Zeehan, Savage River for mineral extraction, Cradle Village, Stanley and Waratah for tourism.

Small settlements where limited small-scale convenience retail or community facilities provide a focus for very localised or rural communities

1. The table ranks the relevant centres in order of the extent and range of relevant activities. In Carthew-Wakefield v Sorell Council (No.2) [2024] TASCAT 188 at [37] the Tribunal observed that:

37. A hierarchy is an arrangement or classification arranging or ranking things according to criteria, often status or importance. The primary definition of hierarchy in the Macquarie Dictionary online is "any system of persons or things in a graded order".

1. We are satisfied that the table establishes an activity centre hierarchy within the meaning of the Scheme, and for the purposes of cl 17.3.2.

The approach to assessment against the standard

1. The objective of cl 17.3.2 is that uses listed as discretionary do not compromise or distort the activity centre hierarchy. This reflects the zone purpose in cl 17.1.2.
2. In Carthew-Wakefield v Sorell Council (No.2) the Tribunal considered a similar standard in cl 14.3.2 in the Local Business Zone of the Tasmanian Planning Scheme - Sorell. The standard was in the same terms as cl 17.3.2 although with an expanded objective and inclusion of an additional matter to have regard to, being the need to encourage activity at pedestrian levels. The approach to cl 17.3.2 P1 will be the same as that taken in Carthew-Wakefield v Sorell Council (No.2).
3. In that case at [36]-[41] the Tribunal said (emphasis added):

36. The purpose in cl 14.1.2 is reflected in objective (b) of cl 14.3.2 and in P2. It is directed at restricting the type and scale of development where it has an effect on the activity centre hierarchy. > > 37. A hierarchy is an arrangement or classification arranging or ranking things according to criteria, often status or importance. The primary definition of hierarchy in the Macquarie Dictionary online is "any system of persons or things in a graded order". > > 38. The Council contended that the meaning of the words compromise and distort reflected the Macquarie Dictionary definition of compromise as "to make concessions at the expense of one's integrity or original plans"; and distort as "to twist awry or out of shape; make crooked or deformed". Neither of those definitions fit comfortably with the context and purpose of protection of the activity centre hierarchy. > > 39. In the context of a standard dealing with biodiversity the Tribunal has approached compromise as to "weaken or harm by accepting standards that are lower than is desirable": S and S McElwaine and A Hamilton v West Tamar Council and Growth Developments Pty Ltd [2021] TASCAT 4 [25]. In considering whether a proposal would compromise the achievement of the desired environmental outcomes in E.J. Cooper & Son Pty Ltd v Townsville City Council & Anor [2021] QPEC 20 at [42] Rackemann DCJ considered that the ordinary meaning of compromise is "to clearly threaten, imperil or endanger". > > 40. Having regard to the zone purpose, the objective in cl 14.3.2, the wording of P2, and the purpose of the activity centre network in STRLUS as integrated by the definition of activity centre hierarchy in the Scheme, the activity centre hierarchy would be compromised or distorted if the relevant discretionary use resulted in the activity centre moving classification within the order of the hierarchy, if it disrupted the order of the hierarchy or if it subverted or impaired the purpose of the hierarchy. > > 41. In this regard, it should be noted that P2 is directed at compromise or distortion of the activity centre hierarchy, not the activity centre itself. This was a significant point of difference in the approach of the parties.

1. Each of the planning experts identified the relevant hierarchy as that set out in cl 4.7 of CCRLUS. In a joint statement the experts agreed that the subject site and the surrounding commercial zoned land is within the regional activity centre of Burnie. Regional activity centre is the highest level of activity centre type established in the hierarchy.
2. The appellant also called evidence from an economist, Mr Robert Buckmaster. Each of the experts, including Mr Buckmaster, agreed that the proposal would not result in Burnie ceasing to be a regional activity centre within the hierarchy. Accordingly, the activity centre would not move classification within the hierarchy.
3. Mr Walker had regard to each of the elements of P1. He noted that the site is a corner lot which is fully developed with a service station and associated shop and convenience store, a fast food restaurant and drive through, the vacant building and 23 car parking spaces. He noted that the service station and fast food outlet are discretionary uses within the zone, and that the majority of the site is therefore developed to facilitate discretionary uses. He noted that the physical characteristics of the site and the floor area of the vacant building curtail the type and scale of uses that are able to be established in the building. He had regard to the size and scale of the proposed use by reference to physical metrics as a proportion of the total area of the activity centre, the area of the activity centre comprising zones that allow a bottle shop use and the total area of commercial zoned land, and concluded that the size and scale of the proposal will be "infinitesimal" relative to the Burnie regional activity centre. He considered that the proposal would be congruent with the functions of the activity centre and will not have any impacts upon surrounding activities. He considered that the size and scale of the proposal would be indiscernible within the context of other similar sized and lower order activity centres.
4. Ms Heckelmann undertook a similar assessment to that by Mr Walker, and she reached similar conclusions in respect to the elements of P1. She noted that the site is located within an established urbanised area of South Burnie and is surrounded by a variety of retail, industrial, business activities and services as well as a variety of health services and residential uses. It sits within a defined commercial cluster which transitions to an industrial cluster to the southeast of the site, and is adjacent to the Burnie port. It is approximately 570m from the Burnie CBD. Residential uses are predominant to the west of the site. Ms Heckelmann considered that the scale and intensity of the proposal would be commensurate to and compatible with the existing uses on the site as well as the surrounding retail and commercial activities. She noted that the proposal would add a general retail use to the activity centre which will not be inconsistent with the existing and intended function of the activity centre. The scale of the proposal means that it will not result in general retail and hire uses becoming a dominant use class in the surrounding area or undermine the mix of uses occurring within the zone. She noted that general retail and hire uses are an anticipated use within the zone and within the activity centre and the use and scale of the proposal is compatible with the existing and intended functions of the activity centre. Ms Heckelmann considered the level of services, activities and functions of the surrounding centres and concluded that the proposal was of a scale which would serve and support the surrounding local area and would not create a relationship with or have a likely effect on the functions of the surrounding activity centres.
5. Mr Buckmaster agreed that the location of the proposal is unlikely to result in Burnie ceasing to be a regional activity centre, and that the role of Burnie as a regional activity centre would remain secured by the concentration of retail, commercial, government and community functions within the town centre. However, he considered that the proposal would compromise or distort the activity centre hierarchy by subverting the purpose of the hierarchy by allowing leakage of general retail activity and associated trade into an area intended for larger format, space intensive retail activities. He considered that the proposal would have a materially adverse impact on Burnie's existing liquor store retailers as it would spread the existing liquor retail trade, which is markedly below national trading benchmarks, more thinly. He considered that the dilution and redirection of trade would necessarily adversely impact the vitality of competitors in the activity centre.
6. Mr Ayers did not undertake an assessment of P1 expressly by reference to the elements that the standard requires that regard be had to. As a consequence we have found his evidence less useful than that of Mr Walker and Ms Heckelmann in assessing the proposal against the standard. Mr Ayers had regard to the land use policy in CCRLUS and considered that the activity centre policy is intended to encourage particular types of activities to co-locate under a designated hierarchy in which settlement centres are described by size, type, location and distribution. He considered that CCRLUS indicated that the purpose of the hierarchy included ensuring that the Burnie CBD continued to deliver retail opportunities that are accessible and commensurate with a level of services expected for the regional activity centre.
7. Mr Ayers considered that the role of the CBD was to promote and maintain a vibrant and diversified retail shopping precinct while the commercial zone provides for uses which require, inter alia, areas for off-street parking. He considered that fragmentation of retail offering would weaken the CBD. He identified a hierarchy of use aligning to need and function reflected in zoning. He considered that the established use pattern in the area of the site represented a clear differentiation from the CBD providing a range of uses which complement rather than compete with the activities in the CBD. He considered that the proposal represents a step in the fragmentation and erosion of the CBD retail offering which will impact the viability of the CBD.

1. At the centre of the analysis by Mr Ayers and by Mr Buckmaster is the effect of commercial competition by the proposal on the liquor retailing market of Burnie, and in particular on the Burnie CBD.
2. Notably, in cl 4.7 CCRLUS states that the strategy is directed at the scale and function of centres and the region, not at commercial competition between particular uses:

The Framework does not support use of the planning system to manage competition between centres by assessing the viability of new commercial use or to consider the likely impact of a proposed commercial use on the viability of other existing commercial use. It does not suggest that there should be restriction on the number or scale of any particular activity or in the proximity of a particular use to other use of that type. > > What the Framework proposes is that the scale and function of each centre be focussed to deliver key community requirements in a manner which is complementary and efficient to the needs of the resident and catchment population of that centre and to the Region as an entity. It suggests the Region's centres be considered as part of a sustainable and efficient network. > > An activity centre policy does not impose a hierarchy of economic social or cultural importance. Rather the concept is to ensure a continuum of size and function and an absence of unnecessary dysfunction for activities which are regionally important and which rely on a regional population.

3. The matters in P1(a), the characteristics of the site, is of minor significance given that the site is already fully developed for a mixed uses.
4. In respect to P1(b), the size and scale of the proposed use, the size and scale is modest and constrained by the building. The size and scale of the use will not have any effect on the activity centre hierarchy.
5. The matters to have regard to in P1(c) are the functions of the activity centre and the surrounding activity centres. This is essentially the key matter that the appellant relies on in contending that the proposal should be refused, and the focus was on the functions of the activity centre. Mr Buckmaster's evidence identified seven bottle shops in Burnie, four of which are located in the CBD. The contention is that the proposal would constitute retail leakage from the CBD that would be a threat to the CBD bottle shops and so the retail function of the CBD. The evidence of impact sufficient to result in the closure of a CBD bottle shop related largely to simple market share and was not convincing. At the level of a regional activity centre, any proposal sufficient to result in compromise or distortion arising from commercial effect will occur at a relatively high level of assessment. The scale of the proposal is simply not great enough to compromise or distort the activity centre hierarchy, even if it were to affect the commercial viability of another bottle shop.
6. There was some contention as to the particular geographic area of the activity centre, and in particular whether it is the whole of Burnie or some more discrete area or areas of activity within the description set out in table 4.7. We are satisfied that our conclusions will hold however the Burnie regional activity centre is geographically defined. Even if the proposal is within a discrete area separate from another discrete area in which another bottle shop is affected by the anticipated commercial competition, any distortion or compromise would still be to the activity centre itself, not to the hierarchy.
7. In respect to P1(d) there was no contention that the proposal would have an impact on any other activity centre.
8. The relevant activity centre is Burnie. The proposal will not result in it ceasing to be a regional activity centre within the hierarchy, it would not distort the hierarchy or subvert or impair the purpose of the hierarchy as explained by CCRLUS. It may have a commercial effect within the regional activity centre of Burnie. As expressly stated in CCRLUS, the framework established by the strategy does not consider commercial impact on existing uses as between centres. There is no reason to conclude that would not also hold true for competition within centres. The activity centre hierarchy will remain the same after the proposal is developed as it is currently.
9. The purposes of the hierarchy as described in CCRLUS, "to encourage particular types of activities to co-locate under a designated hierarchy in which settlement centres are described by size, type, location and distribution", and to "deliver key community requirements in a manner which is complementary and efficient to the needs of the resident and catchment population of that centre and to the Region as an entity", will not be compromised or distorted by the existence of, or the commercial competition created by the proposal.
10. Accordingly, we are satisfied that the proposed use will not compromise or distort the activity centre hierarchy and so will meet the standard set out in cl 17.3.2 P1.

1. No party raised any issue in respect to the conditions of the permit granted by the Council.
2. Neither appeal ground is made out. Accordingly:
   1. The decision by the Burnie City Council to grant a permit for Development Application DA2024/32 subject to conditions is affirmed
   2. Any application for an order for costs in this appeal is to be made in writing with supporting submissions within 21 days. If no application is so filed each party is to bear their own costs.