Parmac Investments Pty Ltd v Brisbane City Council & Ors

Bad Girls Maroochy Pty Ltd v Chief Executive, Department of Tourism, Racing & Fair Trading [2004] QCA 45; [2004] 2 Qd R 352

Broad v Brisbane City Council [1986] 2 Qd R 317

Brodie v Brisbane City Council (No. 3) (1967) 24 LGRA 283

Bunnings Building Suppliers Pty Ltd v Redland Shire Council [2000] QPELR 193

Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126

Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290

Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208

Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386

Hollis v Brisbane City Council & Liquorland [2000] QPELR 243

Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350

Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675

Luke v Maroochy Shire Council [2003] QPEC 5; [2003] QPELR 447

Rooster Land Pty Ltd v Brisbane City Council [1986] QPLR 515

Shell Company of Australia Ltd v Manly Municipal Council (1961) 7 LGRA 87

Skateway v Brisbane City Council [1980] QPLR 245

Sumvista v Redland Shire Council [2005] QPEC 2; [2005] QPELR 460

Ugarin Pty Ltd v Logan City Council & Ors [2004] QPEC 1; [2004] QPELR 392

Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33

Woolworths Limited v Maryborough City Council (No 2) [2006] 1 Qd R 273

Yu Feng Ltd v Brisbane City Council [2007] QCA 382

C L Hughes SC and M A Williamson for Parmac Investments Pty Ltd

J Gallagher QC and D Kelly SC for AMP Capital Investors Ltd and Westfield Management Ltd

Minter Ellison for AMP Capital Investors Ltd and Westfield Management Ltd

[1] These three proceedings all concern a proposed new supermarket and retail complex at Eight Mile Plains. The contest at trial was limited to Parmac as the proponent of the new development, AMP and Westfield[1] (opponents of and potential commercial competitors with it) and the Brisbane City Council which, despite initial opposition, ultimately supported and approved the proposal[2]. A number of neighbouring residents had also elected to join as co-respondents but withdrew during the appeal process.

[2] The AMP/Westfield appeals involve issues now common in this Court, hinging largely upon the proper construction of Brisbane's current large, complex planning scheme, Brisbane City Plan 2000 (City Plan), promulgated under the Integrated Planning Act 1997 (IPA). For reasons which follow I was ultimately persuaded that, when City Plan is read properly with a view to determining its intent and purposes for the land being considered in these appeals, a part of it called the Kuraby Local Plan is important and provides a high degree of support for Parmac's proposal which (in the absence of any other planning impediments) should be allowed to proceed.

[3] The address of the land is 261 Warrigal Road[3]. It is a large, 3.6 hectare rectangular block at the corner of Warrigal and Underwood Roads. Both are important elements of the local network and major 'spine' roads running generally north/south (Warrigal) and east/west (Underwood). Historically, the land was farmed as a market garden. Today, apart from some mature trees along the Warrigal Road frontage and one small residential dwelling, the site is vacant and generally featureless.

[4] Inspection confirmed it is located in an area which has a predominantly residential character. That character is not, however, pristine. The existing residential amenity is affected by the confluence of the two busy roads, and the presence of the nearby Warrigal Road State School and an existing shopping centre called Runcorn Plaza, situated on the other side of Warrigal Road.

[5] Parmac's application sought permission for a material change of use and reconfiguration to allow the construction of a shopping centre with a total area of just under 6,000m² containing a supermarket, some speciality shops and a fast food restaurant. A total of 340 car parking spaces would be provided for the entire development, including the fast food restaurant. The proposal involves using about 2.46 hectares of the total site of 3.64 hectares. The stated intention is to develop the balance area for residential use in the future.

[6] The application originally lodged by Parmac sought a larger development. Subsequent dealings between Parmac and Council show a steady diminution in the size and scale of the proposed shopping centre, and its elements. Over time, these dealings led to a change in Council's position from one of opposition to approval.

[7] AMP and Westfield maintain that the proposal should not have been allowed. They rely principally upon alleged conflict between the ultimate proposal and City Plan and, interestingly, contend that Parmac has in essence hoodwinked Council into changing its position by (in the words of Carter DCJ (as His Honour then was) in an old case[4]) 'contriving' a need for shopping facilities when, in truth, no such need exists.

[8] For reasons which will be apparent I am satisfied that a need for the facility Parmac proposes does, in fact, exist; and, also, that City Plan encourages this development even if a strong or overwhelming need for it is not shown.

[9] The appellants' attack upon past dealings between Parmac and the Council firstly ignores the fact that the IDAS process for assessing development applications under IPA plainly envisages dealings of this kind, including changes to applications in the course of assessment[5]. Rackemann DCJ has spoken, elsewhere, of the benefits which often flow from this process:

The power to modify is beneficial. The nature of town planning and more specifically, the application assessment process (including the appellate process) requires flexibility to respond to facts, circumstances and issues as they emerge and the discovery of new and better ways to implement a proposal. It is through the flexibility to modify a proposal that a great many planning disputes were resolved in ways which are not only satisfactory to the parties but result in better development for the benefit of the wider community. While the power to modify has been criticised by some as an incentive to applicants to hold back information or to make ambit claims, it affords flexibility which, within limits is desirable.[6]

[10] Secondly, in the circumstances in which these appeals fall to be determined facts emerged which undermine AMP/Westfield's arguments that, in truth, no need exists for Parmac's proposal development. First, those appellants are themselves undertaking a massive expansion of their already very large shopping centre at Mt Gravatt, Westfield Garden City, which will include a further department store, a discount department store, another supermarket and over 12,000 m² of specialty shops. The senior town planner called in their case, Mr Buckley, readily conceded such an expansion was indicative of strong need and demand for further retail facilities in this part of Brisbane.[7]

[11] Next, the operators of the nearby shopping centre Runcorn Plaza (which was seen during inspection and was not unfairly described by a number of witnesses as 'tired') have applied to redevelop that centre, notwithstanding apparent knowledge of Parmac's proposal.

[12] There was uncontested evidence from Mr King (who has expertise in noise, lighting and air quality issues) and Mr Chenoweth (visual amenity) that the proposal would not have any unacceptable impacts on the area, or local residents. Notwithstanding that evidence, AMP/Westfield also placed some emphasis in their submissions on what was said to be a risk of harm to the character and amenity of the area, citing the oft-mentioned discussion of those issues in the Court of Appeal in Broad v Brisbane City Council [1986] 2 Qd R 317[8] (and most recently, in Bad Girls Maroochy Pty Ltd v Chief Executive, Department of Tourism, Racing & Fair Trading [2004] QCA 45; [2004] 2 Qd R 352, at 356-7).

[13] It was suggested that Broad is authority for the proposition that the intangible aspects of amenity can in some cases be more important than the tangible ones; but Broad involved a very quiet residential street, and a proposal for a very large building which, the judgments show, would have been quite out of character with the neighbourhood. Plainly the development involved tangible impacts. Here, the busy intersection and the nearby Runcorn Plaza (shortly to be enlarged), and the school create an entirely different character and amenity, and the effects of this proposal upon those elements fall to be considered in quite different circumstances.

[14] The principles to be extracted from Broad may also have little or no application in a case involving a shopping facility of the kind commonly found in and around residential neighbourhoods (and, indeed, already found here in Runcorn Plaza)[9]. It is noteworthy that none of the statements from local residents contain complaints about impacts on character. That is unsurprising in light of Mr Buckley's acknowledgment that things like busy traffic flows are significant contributors to the character of the local area[10]. It is, in truth, difficult to imagine circumstances where a convenience shopping centre opposite an existing shopping centre, at the meeting of two busy roads in a residential area, would give rise to the type of amenity impacts referred to in Broad.

[15] The evidence is, in any event, persuasive that the meeting of two differing uses in the immediate area - shopping and retail on the one hand, and residential on the other - will not impinge upon amenity, which can be maintained to an appropriate standard. That conclusion is reinforced by the design of the proposed development which will be cut into the site, largely shielding it from the closest adjoining residential developments to the north, and east. Further, whatever amenity concerns might exist - which could not, on any view, be described as more than low level, or minor - they are (as in Luke v Maroochy Shire Council [2003] QPEC 5; [2003] QPELR 447) offset by the need for a grocery outlet of the kind proposed.

[16] All three parties called senior and very experienced traffic experts[11]. Only one, however, thought the development would create serious traffic problems, or that proposed design changes to local roads and intersections were inadequate, or insufficient. Those views did seem, with respect, unduly pessimistic and redolent of something too close to a counsel of perfection - both standpoints which this Court has, unsurprisingly, discouraged in previous judgments[12].

[17] In particular, the evidence established that the intersection of Underwood and Warrigal Roads, which already features traffic lights, can be sensibly and satisfactorily redesigned to cope with this proposed development and that some internal design issues concerning the 'drive-through' facility of the fast food outlet could be addressed through conditions. Ultimately I was not persuaded there were any traffic engineering reasons warranting refusal. Indeed, I accept the proposal actually enjoys an advantage from a number of desirable traffic features including the existing presence of two major local roads; improvements to the signalised intersection, and road-widening; and, good access to and from the site.

[18] AMP/Westfield also argued that the new centre would simply be too close to the existing one at Runcorn Plaza. This offended, it was said, a long recognised town planning principle that it is undesirable to locate shopping centres on both sides of a road. In light of the close proximity of large shopping centres, frequently observed in modern cities including Brisbane, the proposition is a little surprising. The authorities cited for it were old, and may have been overtaken by more recent developments in planning principles: Shell Company of Australia Ltd v Manly Municipal Council (1961) 7 LGRA 87; Brodie v Brisbane City Council (No. 3) (1967) 24 LGRA 283. There is, certainly, more recent authority for other quite different planning propositions, like the idea that contiguous shopping facilities might best be consolidated, rather than fragmented: Elfband Pty Ltd & Vanhoff Pty Ltd v Maroochy Shire Council [1995] QPLR 290.

[19] While the issue of proximity falls, logically, as a matter to be taken into account, the evidence of the retail and need experts and the town planners largely supported the view expressed by one of the planners, Mr Schomburgk, that the proposed centre would '... compliment Runcorn Plaza and provide choice and competition to the residents'[13]. The conclusion draws tacit support, at least, from the fact that the operators of Runcorn Plaza have not participated in this appeal and Coles, the operator of the supermarket within that centre, did not object to Parmac's application.

[20] The major focus in the case was upon the proper construction of City Plan and its constituent parts. Under the planning scheme the application is impact assessable and must, therefore, have been assessed by the Council (and, now, the Court) under IPA s 3.5.5, and decided under s 3.5.14. Under subsection 3.5.14(2), the assessment manager's decision must not compromise the achievement of Desired Environmental Outcomes (DEOs) for the planning scheme area, nor be in conflict with it unless there are sufficient grounds to justify an approval, despite that conflict. The procedure of assessment under the provision is not, of course, one which should be undertaken in an unnecessarily formal or mechanical way[14]; and, any conflict must be capable of being plainly identified[15].

[21] City Plan contains, in Chapter 2, a Strategic Plan which promotes 'the vision for the City and how it is to be achieved'. In doing so, it expresses the DEOs and planning 'strategies'. Chapter 3 deals with areas and assessment processes, and also contains, in Part 4, provisions concerning what are termed 'Emerging Community Areas'. These areas are identified on a map[16] which, AMP and Westfield say, indicates that the corner of Warrigal and Underwood roads is intended for predominantly residential uses and which, appropriately for that type of use, calls up DEOs which do not countenance or contemplate retail development.

[22] The Strategic Plan articulates a retail hierarchy which relies on a system of multi-purpose Centres descending from the great to the small - ie, from the Brisbane Central Business District through major centres, suburban centres and on down to convenience centres. The large Westfield Garden City shopping centre operated by AMP/Westfield is at the second level, i.e. it is a major centre (MP2) while the nearby Runcorn Plaza is (and this proposal would be) a Convenience Centre (MP4). MP4s are defined as smaller centres providing local services within walking distance of residents, and generally containing less than 6,000 m² of gross floor area.[17] AMP/Westfield's case is, also, that this proposal offends the retail hierarchy within the Strategic Plan, is strongly discouraged under it, and can only be permitted if 'overwhelming community need' is established.

[23] The site and the surrounding area also appears, however, in the Kuraby Local Plan, one of many 'local plans' appearing in Chapter 4 of City Plan. These local plans are intended, as the scheme announces, to provide '... detailed guidance for development outcomes across particular localities of the city' and to '... put forward more locally focused desired land use and built form outcomes ... than are contained in the areas in Chapter 3'.[18]

[24] Importantly, these local plans for outer suburbs '... are intended to form the basis for further detailed design'[19] and relevantly, in the case of what are called 'potential development areas' (as this parcel is designated in the Kuraby Local Plan) to provide '... potential development opportunities'. These plans, to the extent they may be inconsistent with other provisions of the planning scheme, take precedence and override or prevail over those other parts - including, in particular, the more broad-based strategic area classification provisions. These outer suburbs local plans have particular relevance, too, to Emerging Community Areas.[20]

[25] As will be apparent these local plans are much more likely to contain specific, detailed and highly relevant information and assistance about applications of the kind under consideration. That will not always (or necessarily) be so under every IPA planning scheme but it is the case here and, for reasons helpfully extracted in submissions from Counsel for Brisbane City, there also are a number of aspects of City Plan which support this proposed development.

[26] Notably, and firstly, the Kuraby Local Plan is one of 20 plans specifically described as a local plan for an outer suburb, of which 11 make specific provision for future convenience centres to be established outside existing centres which otherwise appear in the City Plan maps. In Kuraby the local plan envisages just that kind of out of centre development. Once that distinguishing feature of those particular local plans is recognised there is, I agree, a strong argument that demonstrating overwhelming community need under the Strategic Plan is, ultimately, unnecessary.

[27] Then, of the 11 outer suburbs local area plans which make provision for future centres, the remaining 10 contain much more specific language in the way the text and maps deal with the relevant symbols for proposed future convenience centres than appears in the Kuraby plan. There, the symbol is placed in an area covered by Beenleigh Road and the railway station and an area with land use designations which, in all the circumstances, suggest it is intended to be nothing more than indicative - an illustration and an acknowledgment that a future convenience centre is called for in the plan area, and that a need for it exists, but with no prescription or clear guidance about its location. Further, other local plans use language to describe the proposed locations of convenience centres as 'appropriate' or 'preferred' while the Kuraby Plan shows nothing more than a 'desirable' location - in relative terms, the lowest order of preference.

[28] That analysis is strengthened by the fact that, as inspection and plans in the scheme confirmed, the suggested site near the railway station does not appear appropriate or realistic and much of it is in an area designated as Open Space. It is inescapable, then, that this local plan contains a tacit (but compelling) acknowledgement that a need for a convenience centre exists within its area, but it goes no further than that. These factors are persuasive that neither need nor, in particular, overwhelming community need must be established in order to justify the particular location of a convenience centre within the Kuraby local area. Indeed because the local plan anticipates a centre of this size there can in truth be no legitimate concern extracted from these parts of City Plan about economic impact or need or, even, impact on the hierarchy.

[29] In any event, for reasons apparent from previous judgments of this Court and the Court of Appeal and the relevant prevailing circumstances touching this development application, the phrase 'overwhelming community need' contains a test which Parmac has little difficulty satisfying. Those earlier decisions show that the concept of need will be given greater or lesser weight depending on all the circumstances which the planning authority has to take into account[21].

[30] In a recent decision of the Court of Appeal, Yu Feng Ltd v Brisbane City Council [2007] QCA 382 Williams JA described the phrase 'overwhelming community need' as a 'motherhood statement'[22] - a phrase which the Australian Oxford Dictionary[23] defines as '... platitudinously endorsing that which everyone accepts as worthy'. The point his Honour was, with respect, making is that the meaning and effect of the phrase will vary enormously from case to case and when, as here, the need to be satisfied involves the daily essentials of ordinary life, the bar should not be set too high; and, when the planning scheme indicates a deliberate planning decision to provide an opportunity for appropriate convenience retail facilities to satisfy those needs, and where there are no unacceptable impacts on amenity, the efforts required to demonstrate need at that level are not onerous.

[31] The trade area agreed by the expert economic consultants who gave evidence includes a substantial population of around 26,000 people a proportion of whom would unarguably benefit from a modern convenience centre, including a full-line Woolworths supermarket and a range of complimentary specialty retailers. As Ms Johnston from Woolworths confirmed, it is unusual to have a trade area of this size not served by a full-line supermarket. That evidence would go a long way towards establishing (if it was, indeed, necessary to do so) that the need is 'overwhelming'.

[32] In addition, there are obvious public benefits associated with approval of Parmac's proposal. It provides a full-line supermarket in circumstances where the economic evidence from Mr Leyshon, a very experienced witness, suggests there is a plain need. Moreover, the supermarket will be provided by a retailer with an apparently large public following and, the introduction of competition with the Coles supermarket nearby, plus the improvements to the local road network and the development of a derelict site all mean that in the town planning sense need is plainly established.

[33] Finally there is the suggestion advanced by AMP and Westfield that the designation of the site under the planning scheme as a Potential Development Area meant that this parcel is intended for residential use only but, as a perusal of other Local Plans showed, in some cases the convenience centre symbol is actually superimposed over the PDA classification[24]. So far as the site's classification in an Emerging Community Area is concerned, the scheme shows that decision involves an acceptance that the land is generally suitable for development for urban purposes, at some future time. These areas include DEOs which look to supporting development with local centres[25] and, in the Strategic Plan, require that these areas provide a diverse range of housing types 'and supporting uses'[26].

[34] In summary, City Plan provides substantial support for development of the kind proposed. The principal relevant element of the planning scheme, the Local Plan, accepts a plain need for a convenience centre and does not strongly define the location of that centre. The evidence points to both an economic and planning need, and that redevelopment will involve benefit to the community. There are no apparent amenity impacts, and an acceptable outcome in terms of traffic requirements and road improvements.

[35] An attempt was made by AMP/Westfield to gain some support for its contentions from the decision of Skoien SJDC in Ugarin Pty Ltd v Logan City Council & Ors [2004] QPEC 1; [2004] QPELR 392, not least because of a perceived similarity in the surrounding circumstances. Certainly that was a case in which one appellant proposed establishing a new shopping centre while another wished to extend its existing facility, located directly opposite the development site. Unlike the present case, however, the 'new' proposal was found to be in serious conflict with the planning scheme. Because the cross-appeals involved directly competing submissions it was, also, relevantly found that the older shopping centre, after its proposed expansion, would not be materially inferior to the proposed new one. In the absence of an appeal from the operators of Runcorn Plaza or the supermarket operators there, and in circumstances where this planning scheme supports the provision of a shopping centre, the cases are fundamentally different in both their factual and legal circumstances.

[36] AMP/Westfield also questioned the town planning logic of locating two MP4 convenience centres in close proximity. There is, I am persuaded, nothing inimical to City Plan, or to ordinary town planning principles (or, as was suggested here, to questions of logic or common sense) in having two convenience shopping centres of the MP4 type operating proximally. Unarguably, City Plan looks to matters of function in determining where a centre sits in the retail hierarchy; and, here, it is the 'convenience shopping' function (and size) which makes this centre a proper MP4 (and not, as was occasionally suggested during the hearing, in concert with the Runcorn Plaza a kind of amalgamated MP3).

[37] As will be apparent, I am not persuaded there is any actual conflict between this proposal and any part of the planning scheme. Even if a different conclusion had been reached, however, it is impossible to see how any perceived conflict could be categorised as more than minor, or low level. The authorities touching the construction of planning schemes show they should be read as a whole and in a way which achieves their apparent purpose, one obvious purpose being to ensure the provision of appropriate facilities to meet community needs for the necessities of life. The analysis of City Plan set out earlier shows that it encourages the provision of convenience centres of this kind. Whatever low level conflict might be mistily discerned, it would plainly be overcome by relevant grounds providing strong support for the proposal which include an obvious community need; community benefits; convenience; and, an interesting practical benefit - that the proposal has apparently been a catalyst for the redevelopment of the nearby Runcorn Plaza.

[38] No evidence of any unacceptable economic impacts, including impacts upon Runcorn Plaza, was put forward by AMP/Westfield. Runcorn Plaza had been allowed to become tired and rundown, in circumstances where the absence of real competition is a likely cause. (As the retail/economic consultant called by AMP/Westfield said, it required investment if it was to properly serve its role as a convenience centre for residents in the surrounding area). Actual competition will now, it seems likely, come to pass. Other existing traders said to be exposed to the risk of suffering a reduction in trade are not behaving as though they fear that, as a real consequence of Parmac's proposal. For example, Woolworths has recently completed a major refurbishment of its store at nearby Underwood and is in the process of doing the same at Sunnybank Hills. In short, there is no evidence to suggest any unacceptable economic impacts[27].

[39] Finally, submissions made for AMP/Westfield placed considerable emphasis on the allegation that this proposal involved what was termed 'out of centre' development, something said to be innately offensive to the centre hierarchy created under the Strategic Plan. The submission pales, however, in the face of the provisions of the Local Plan which for reasons already explored provides actual support for just this kind of convenience centre, somewhere within the Plan area. When this is appreciated, the accusation loses all force. City Plan contemplates an MP4 within this Local Plan area. The proposal provides it. The fact it is proximately located with a similar centre is, again for reasons explored at length, largely immaterial. It has little in the way of practical consequences and none in terms of the planning scheme.

[40] For these reasons the two appeals by AMP/Westfield are dismissed. Parmac's appeal will be adjourned to a date agreed by the parties, for the resolution of conditions to be attached to the approval.

[1] submitter appeals 1490 and 1491 of 2007

[2] Although Parmac has appealed against some conditions attached to Council's approval (appeal 1166 of 2007) those parties now agree that if the submitter appeals are dismissed, their appeal may simply be adjourned while they resolve final conditions.

[4] Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33 (referred to in Anka Builders (Gold Coast) Pty Ltd v Maroochy Shire Council [1986] QPLR 436, at 460

[5] See, e.g., IPA s 3.2.9

[6] Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80; [2005] QPELR 386, at 392

[8] Per Thomas J at 319-320, and de Jersey J (as the Chief Justice then was)

[9] Luke v Maroochy Shire Council [2003] QPEC 5; [2003] QPELR 447, at [135]

[10] Mr Buckley's report, Exhibit 13 page 4

[12] See, e.g., Quirk DCJ in Hollis v Brisbane City Council & Liquorland [2000] QPELR 243, at 245; and, Sumvista v Redland Shire Council [2005] QPEC 2; [2005] QPELR 460, at 464

[13] Exhibit 3, page 38, paragraph 5.6.4

[14] Woolworths Limited v Maryborough City Council [2006] 1 Qd R 273 per Fryberg J at 296, [55]

[15] Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212

[21] Skateway v Brisbane City Council [1980] QPLR 245; Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116; (2001) 116 LGERA 350; Cut Price Stores Retailers v Caboolture Shire Council [1984] QPLR 126; Rooster Land Pty Ltd v Brisbane City Council [1986] QPLR 515; and, Bunnings Building Suppliers Pty Ltd v Redland Shire Council [2000] QPELR 193.

[24] Algester / Parkinson / Stretton, and McDowall / Ridgemond Downs

[27] On the lines suggested in Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675.