PMM Group Pty Ltd v Noosa Shire Council

[2] Mr Hughes SC described the proposal in his opening; and on occasions during the hearing, as a proposal to relocate and expand the existing Bunnings hardware outlet which is on the same side of the Eumundi Noosa Road some 600 metres to the east. In a practical sense he is correct, but as a matter of law the proposal involves an application for material change of use which is impact assessable, no matter how one characterises the proposal in accordance with the definitions in the transitional scheme. The present Bunnings is a much smaller operation and is in fact an old BBC Hardware outlet, taken over by Bunnings. The present use of that site was approved under an earlier planning scheme in about 1984.

[3] The land is contained in the industry zone under the Council's transitional planning scheme, and in the Draft Noosa Plan which has been through public exhibition, it is in the Noosaville locality and is zoned "Industry".

[4] As the development application was lodged under the Council's transitional planning scheme, s. 6.1.29 and 6.1.30 of the Integrated Planning Act 1997 apply, and pursuant to s. 6.1.30(3)(a), the application is to be decided under either 4.4.5 and 4.5(5A) or s. 4.13(5) and (5A) of the Local Government (Planning and Environment) Act 1990.

[5] Whether 4.5(5A) or s. 4.13(5A) apply depends on whether the application was one, which had it been made prior to the commencement of Integrated Planning Act, it would have been:

(b) an application for town planning consent (s. 4.13(5A).

[6] In either case the court must refuse 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 approving the application despite the conflict."

[7] In accordance with the decision of the Court of Appeal in Weightman v Gold Coast City Council [2002] QCA 234; (2003) 2 Qd R 441, when proceeding under s. 4.4(5A)(b) (or s. 4.13(5A)) of the repealed Act, the decision maker must:

2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those grounds;

3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict."

(per the Chief Justice (at 446-447) and per Atkinson J (with whom McMurdo P agreed) at 453).

[8] The appeal is brought pursuant to s. 4.1.27 of Integrated Planning Act, and it is for Bunnings to establish that the appeal should be upheld.

[9] In his opening, Senior Counsel for Bunnings, Mr Hughes SC summarised the issues in the appeal as follows. If there is conflict with Council's 1997 Strategic Plan; what is the extent of conflict. On this issue he referred to visual impacts (building bulk, height scale etc); impact on the Shire Business Centre, characterisation (Bunnings submits that its proposal best fits the definition of "showroom" and "nursery" in the Schedule to the 1990 scheme, and Council submits that "shop" is the more appropriate description of the use proposed), and traffic issues.

[10] As to Planning Grounds, he primarily focussed on need for a mega hardware store; the issue being the extent of such need.

[11] Mr Trotter, Senior Counsel for the Council, in opening, described the issues in "fundamental dispute" as being the extent of conflict with the Strategic Plan (he mentioned specifically issues such as visual impact, built form, lack of integration, scale and bulk; and conflict with the fundamental strategy contained in the Strategic Plan relating to the Shire Business Centre), and the extent of need.

[12] In its final written submission, Council goes further and submits that the proposal cuts across the Council's Strategic Planning, clearly defined in the Strategic Plan, and confirmed in the Draft Plan. These strategies it identifies as:

"(a) a well considered and detailed hierarchy for the provision of business, commercial and retail facilities in Noosa;

(b) the encouragement, nurturing and protection of the Shire Business Centre ("SBC"), a centre conceived as the pinnacle of that hierarchy, to the exclusion of short term perceptions of demand;

(c) the maintenance and enhancement of important principles relating to scale, appearance, form, and integration of all forms of development; matters which are recognised as related to the core values of the Shire;

(d) the protection of adequate industrial land in convenient and accessible locations; and

(e) long-term, integrated strategies for road and traffic planning."

[13] The Council has expanded upon the grounds of refusal contained in its decision notice. The issues raised by it are now whether the proposal:

(b) complies with the Strategic Plan, and in particular the provisions for the Noosa Heads / Noosaville Locality and the Industry designation;

(c) is consistent with the intent of the Industry zone;

(d) is likely to prejudice the future growth of industrial activities within the Shire by "introducing non-industrial uses on land designated for industrial development";

(e) should be located in the SBC, including whether its location on the subject land will adversely impact upon the ability of the SBC to operate as the "principal business, retail and administrative centre" of the Shire;

(f) conflicts with the draft planning scheme;

(g) will adversely affect the visual amenity and character of the Shire;

(h) will have adverse traffic impacts."

[14] In Exhibit 25 Bunnings identifies the grounds on which it says the development application should be approved. They are:

"(a) development such as that proposed is specifically supported by the statement of intent for the Industry zone which contemplates the uses within the zone (including plethora of retail uses) which generally support or complement industrial uses;

(b) the development is supported by the Strategic Plan which supports not only industry uses but also service-related businesses which cater for the needs of the Shire and the north-east Maroochy Shire, and which require that only "inappropriate" non-industrial uses do not establish;

(c) there is a town planning and economic need for the proposed development and, in particular, it will provide increased choice and a higher standard of facilities and range of services than is presently available, and will do so in a single destination;

(d) the proposed development, involving the re-location and expansion of the existing Bunnings' outlet, represents an overall improvement to the services and facilities available to the public in the locality;

(e) the subject land:

(i) is suitable for the proposed development in physical and locational terms, and in particular, it is large enough to accommodate the proposed use and its ancillary requirements including access, traffic circulation and carparking;

(ii) is, in terms of topography, ideal for development as proposed so as not to be unacceptably obtrusive and is consistent with the form of development which exists, and which is to be expected in the locality;

(iii) is located in an area which has become a recognised designation for light industrial, service, commercial and retail facilities; and the proposed development will compliment the range of products available to the public in that locality;

(f) the proposal does not represent an intrusion into an industrial area but rather the replacement of an existing, popular but unsatisfactory, facility already within the area;

(g) the proposed development cannot physically be accommodated in the SBC, and in any event would be inappropriate to be located in the SBC;

(h) the proposal will improve the visual amenity of the immediate locality;

(i) the proposal will result in improved stormwater run-off; and

(j) neither the nature nor the extent of any conflict with the draft planning scheme are sufficient to warrant refusal of the proposed development.

[15] The Strategic Plan is broadly structured on three levels. Level one sets out in broad terms a strategic vision, which includes strategic principles based on character and lifestyle, social, environmental and economic principles; and development principles dealing (relevantly to this appeal) with landform, and landscape integration, physical constraint, built form and transport. In the structure of the Plan, the Strategic Vision feeds into Strategic Aims which (relevantly) include business, retail and administrative development aims, and transport and industrial development aims. At the third level, the Plan moves into more detailed implementation provisions for 11 localities in the Shire including the Noosa Heads / Noosaville locality in which the land is located.

[16] Eumundi Road and Eenie Creek Road and the new Walter Hay Drive which both feed into the new Shire Business Centre are defined as "major roads"

[17] Clause 1.3 of the Strategic Plan sets out the objectives and implementation criteria and status in its introduction:

"The Preferred Dominant land uses for each locality are developed from:

(a) previously established land use commitments and settlement patterns

"Should there be doubt regarding the consistency of any development with the objectives, the requirements of the Shire Strategic Vision, Strategic Principles, Development Principles & Strategic Aims, from which the objectives are derived, will prevail."

"Within any Preferred Dominant Land Use designation, other supporting uses may also establish. Criteria for determining the type, scale or distribution of these uses are as follows:-

(a) The supporting use will be integral to and service the Preferred Dominant Land Use.

(b) The supporting use or the combined impact of supporting uses will not detrimentally affect or significantly alter the amenity or function of the mapped area of the Preferred Dominant Land Use or any part of that area.

(c) The scale and character of the use and any buildings; the traffic and parking demands; and the demands on community infrastructure will be consistent with that of the Preferred Dominant Land Use.

(d) The scale and distribution of any use or uses will be determined by community need within the area of the Preferred Dominant Land Use designation. It will also be assessed on the basis of the availability of alternative and more appropriate Preferred Dominant Land Use designations in existence in the area.

A use which does not meet these criteria or the objectives for the Preferred Dominant Land Uses, is not supported by this Strategic Plan."

[18] This general statement is taken up in more detail in the Noosa Heads / Noosaville locality provisions, and in the Strategic Aims for Business Retail and Administrative Development and Industry, however issues such as the degree to which the supporting use is integral to and services the PDLU; scale and character of services, the use of any building, traffic and parking demands and community need are all important in this case, and there is very little common ground.

[19] The Strategic Plan deals with the Noosaville locality commencing at Clause 18. 18.2 refers to convenience, accessibility and servicing and states:

"(The locality) provides the Shire's principal business, retail ... and industrial needs ..."

[20] In the Intent provision, clause 18.4, reference is made to "controls on the extent, scale and aesthetics of development and on the amount of commercial development" as being "key factors".

[21] During the appeal, there was much attention given to a number of paragraphs of 18.4 which are undoubtedly important provisions relevant to the decision in this case:

"Significant economic activities will take place in this locality, in addition to those relating to visitor populations. A new business centre (Shire Business Centre) will be established which will service Shire-wide needs, as well as the needs of the residents in the north-east of Maroochy Shire. The highest level of business, retail and administrative services will be accommodated in a multi-function centre on Eenie Creek Road, east of the industrial estate. Development of the centre will be staged consistent with the needs of the resident and visitor populations to the Shire. This centre, as well as resident and visitor based service functions, will form the major focus of employment growth, in the coast area of the Shire.

The existing business centres at Noosa Junction and Noosaville will be maintained, though the communities and people served by those centres is likely to change over time:-

• Noosa Junction will shift from a focus of residents across the whole of the coastal area supplemented by visitors, to servicing predominantly local needs of the Noosa Heads community and visitors. Its proximity to Hastings Street and historical role as the principal business centre for the Shire will see a number of major retail, business and administrative outlets maintained.

• The Noosaville Business Centre (generally bounded by Mary Street, Thomas Street and Gibson Road) will shift from a focus of serving residents in the western part of the coast area of the Shire, to serving increased local needs of the Noosaville community and visitors.

The Noosaville industrial estate will be maintained as the major industrial centre serving the Shire, although services available in Cooroy will result in Noosaville providing fewer services to the hinterland communities. Limited expansion of the industrial estate will occur in areas to the west of the new roads between Emu Mountain Road and the intersection of Eumundi Road/Goochap Street."

[22] Also in paragraph 18.2, a table sets out "key concepts" which again refer in (5) to "Provision for development of the highest level of retail, business, administrative and industrial services in the Shire in a multi-function centre on Eenie Creek Road, east of the industrial estate" which is a reference to the Shire Business Centre.

[23] The plan then proceeds into more detail within the locality and deals with the Shire Business Centre at 19.3.1, the Noosa Junction Business Centre at 19.3.2, the Noosaville Business Centre at 19.3.3 and Industry at 19.5. Council's argument in relation to the Business centres, put simply, is that the Strategic Plan (and indeed the relevant provisions of the Draft Noosa Plan) indicate in very clear terms a well articulated strategy for the way in which the existing Business Centres will operate in the future - put simply, focussed on more local and visitor requirements whilst the highest level of business and retail facilities will shift to the new Shire Business Centre. Council's argument is that the Bunnings proposal will fundamentally cut across this clear strategy.

[24] 19.3.1.1 refers to the Shire Business Centre to be "developed as a multi-function employment node catering for the highest level of business, (and) retail ... facilities in the Shire, consistent with Strategic Aim 27.2.3.2 ..." 19.3.1.2 refers to development within that centre as including retail components of the order of 15,000m² of floor space, which in its first stages will include a discount department store, and "Homemaker/showroom components of the order of 10,000m²."

[25] It is common ground that Stage 1 of the SBC is now under construction generally in accordance with Exhibit 26 and that a Woolworth Supermarket is included together with a Big W which is the planned DDS, and a large number of speciality shops some of which are listed in Exhibit 27. In accordance with 19.3.1.5 Council has produced a Master Plan for Stage 1 and a Master Plan for Stage 2 which are contained in Exhibit 52. Some of the Council expert witnesses suggested that a Bunnings mega hardware store may fit into Stage 2, which is a concept only at the present time, and I will deal with that issue later. It is common ground that the development proposed by Bunnings will not fit into Stage 1.

[26] Under the objectives provision (19.3.1) for the SBC, the plan refers to design considerations which include reference to "A low rise form of mainly single storey buildings" and "separate buildings, rather than bulky developments under a single roof." It is difficult to see how the proposal, given its height and bulk, could conform to those design considerations.

[27] 19.3.2 deals with the Noosa Junction Centre, and states its objective is to "encourage the consolidation of the Noosa Junction Business Centre." It states:

"Historically, Noosa Junction has been the principal business centre serving the Shire. This role will change with the development of the Shire Business Centre, the growth in resident population in the western part of the coast area of the Shire and the growth in visitor population in the eastern part."

[28] In relation to the Noosaville Business Centre it is stated that its "role will alter although to a lesser extent than in Noosa Junction ... (and) ... will service increased local needs, where the community will comprise mainly residents of and visitors to Noosaville..."

[29] Clause 19.5.1 is an important provision as it deals specifically with the Industry zone in which the land is located. Certainly, Professor Brannock, on behalf of Bunnings regarded this provision as supporting his opinion in support of the proposal.

[30] 19.5 sets out in tabular form the PDLU for the zone as "Industrial uses". "Industry" is defined in the Schedule to the 1990 scheme and it is not suggested that the operation proposed here fits within any part of that definition.

"Objective: Maintain and encourage the establishment of industries and service-related businesses on appropriate land in the Noosa Heads/Noosaville locality.

19.5.1.1 The industrial estate at Noosaville is the principal industrial centre for the Shire. This area provides important industries and service-related businesses to the whole of the Shire, but particularly the coast area and the north-east area of the Maroochy Shire. Population growth in the coastal area of the Shire will increase the need for employment and services in the future. These needs will be fulfilled by an expanded industrial estate with development in the Industry and Service Industry designation of about 59.0 and 4.4 ha respectively. These areas will be supplemented by land development for employment-related purposes in the Shire Business Centre.

19.5.1.2 The focus for employment-related industry will be on land with an Industry designation. Manufacturing, processing and mechanical industries are encouraged to locate in this designation. Lower impact service-related uses will be established on land with a Service Industry designation.

19.5.1.3 Key issues associated with development of land with an Industry or Service Industry designation in the Noosa Heads/Noosaville locality will be:-

• The aesthetics, traffic and parking impact of development on major roads.

• The protection of land for industrial purposes, ensuring land use conflicts do not arise and ensuring that inappropriate non-industrial uses do not establish within the Industry designation."

[32] In the last part of the Plan, the Strategic Vision, and Strategies and Development Principles and Strategic Aims, referred to in the introduction, are set out in more detail.

[33] Clause 24 deals with the Shire Strategic Vision. As part of the "essence" of this vision it is said (relevantly) that residents and visitors appreciate features including:-

• "Integration of development with the Shire's landform and landscape;

• Proximity of the Shire to centres with higher order services..."

[34] In the regional context, the Shire is identified as being the northern most of the three Local Governments which comprise the sub-region of the Sunshine Coast.

"It is the smallest of these local Governments in both area and population. As a consequence, a number of the services which support the urban and rural populations of the Shire are found outside the Shire. These services are nevertheless reasonably accessible to the Noosa Shire community."

[35] Under the heading "Communities" it is stated:

• Built environments which fit into and do not dominate the natural environment."

[36] It is in this section of the Plan, that reference is made to a population of 56,600 since upgraded to 61,350, described by one of the witnesses as a "faux population cap."

[37] Under the heading "Economy" in the Strategic Vision section it is stated:

"Noosa Shire's economy is founded on the Shire's small scale, its environment, the proportion of open space to development, a service industry base and cultural and creative values. The Shire's prosperity is therefore directly related to the maintenance of character, lifestyle and environment enjoyed by its residents"

[38] Strategic Principles are set out in paragraph 25. These include under "Character and Lifestyle Principles":

"25.1.1.3 There are many important development aspects of Shire and locality character, some of which include:-

• Integration of the built environment with the natural landform and landscape.

• Low scale, density and intensity of development.

• Absence of city symbols, such as high rise buildings, traffic congestion, 4 lane roads, traffic lights and parking metres."

[39] Under Strategic Plan: Development Principles, there is reference to 26.6 to Built Form & Development Form Principle:

"For all development, whether or not it includes building, there are two important elements:-

• How it fits on the land and with the land's context."

[40] Council relies upon some of the Strategic Aims set out in paragraph 27. Under 27.2 Business, Retail & Administrative Development, is a sub-heading "27.2.1 Character, Lifestyle & Environment Role" and a number of the aims set out in that section are applicable here:

"27.2.1.2 Features such as human scale, development integrated with surrounding built form and landscape fabric, ... low stress traffic environments play a key role in characterising business ...

27.2.1.3 The features described in 27.2.1.2 distinguish business, retail and administrative developments in Noosa Shire from other such developments in Sunshine Coast and south-east Queensland areas.

27.2.1.4 The proximity of other centres to Noosa Shire ensures ready access to higher order goods and services and comparative shopping, enabling the scale and atmosphere of local developments to be retained.

27.2.2 Economic Role

27.2.2.1 The business, retail and administrative sectors are important contributors to the Shire economy. Nevertheless, their significance is not so great as to warrant the setting aside of the Shire's core values and the character, lifestyle and environment enjoyed by its residents, in order to achieve short term economic and employment goals.

...

27.2.3.1 Recognise that a significant proportion of the higher order needs of the Shire's population is fulfilled by business, retail and administrative developments located in other regions, particularly the key regional centre of Maroochydore.

...

27.2.3.3 Protect the long term viability of the principal business, retail and administrative centre to the extent that:-

• Short term needs may be set aside to ensure the medium-long term implementation of the centre.

...

27.2.3.4 Recognise that if may be necessary to increase floorspace in existing centres to meet changing needs:-

• In Noosaville, ... any increased floorspace is to be of a scale consistent with the direct needs of the area served by those centres and in keeping with the character of those centres.

In all cases, any increased floorspace is not to impact on the successful operation and development of the principal business, retail and administrative centre."

[41] Under paragraph 27.5 Industrial Development at 27.5.3 is set out a number of Industry Aims which include:

"27.5.31 Acknowledge that the scale of population and development in the Shire and its proximity to higher order uses to the south, will result in low key, clean and service-orientated uses serving local and Shire-wide needs being the dominant industrial functions in the Shire.

...

• Noosaville, which has both an appropriate level of infrastructure and a wide range of functions which can support industrial uses, is the Shire's principal industrial centre and the only industrial area in the coast part of the Shire.

...

27.5.2.5 Ensure that industrial development adheres to the Strategic Principles and Development Principles."

[42] Paragraph 27.10 deals with Strategic Aims relating to Transport and some are apposite here:

"27.10.1.2 The perceptions of any place are closely tied to the initial impressions obtained when arriving. Thus the Shire entrances, the entrance roads and the treatment of those roads and areas visible from those roads is of importance to the perception of the Shire's core values.

27.10.1.3 The perceptions of any place are also closely tied to the impressions gained when moving about that place. ...Thus the treatment of any of the significant access roads through or across the Shire is also of importance to the perception of the Shire's core values.

...

27.10.1.5 With particular focus on road corridors, traffic and parking, the peak loads created as a consequence of the large number of visitors attracted to the Shire, have significant potential to impact on the character of particular localities. This can occur through factors such as:

...

• The expansion of sealed or concreted areas to cater for increased numbers of vehicles.

...

27.10.3 Road Transport Aims

...

27.10.3.5 Ensure the functionality of all roads, and particularly those limited and controlled access roads, within the Shire is maintained and is not impacted by inappropriate land uses being established adjacent to those roads.

27.10.3.7 Recognise that the character of the Shire's road corridors and the area adjacent to those corridors is one of the distinctive elements which sets Noosa Shire apart from other areas of south-east Queensland. Traffic or parking solutions acceptable in those areas will not necessarily comprise satisfactory solutions in Noosa Shire.

27.10.3.5 Ensure that the entrances to the Shire, particularly ... Eumundi Road ... are developed in a manner which maintains rural vistas or extensive areas of open space adjacent to those roads."

[43] There are a number of definitions which are relevant to the characterisation issue. These are:

Any premises used or intended for use for the retail sale of plants, trees and shrubs grown on the subject land and ancillary products for garden use. The term does not include agriculture, bulk garden supplies, a roadside stall or shop as herein defined.

Any premises used or intended for use for displaying or offering for sale, goods to members of the public. The term includes the ancillary use of such premises for preparing and serving food and serving beverages to persons seated at the site, provided there is a maximum of 2 tables and 10 chairs.

Any premises not less than 150m² in area used or intended for use for the primary purpose of displaying goods of a similar type, other than food, for sale to the public. The term does not include a shop or vehicle sales premises.

Any premises used or intended for use for the storage of goods, merchandise or materials in large stocks whether or not such storage is required for an adjoining shop or other commercial premises, pending their distribution or sale to persons who purchase for retail sale only.

[44] In his evidence, Mr Brown described the characterisation issue, in this case, as a "grey" area. It is therefore important to note that the scheme anticipates this in 2.2.7:

"Where, in the opinion of the Council, a particular purpose is not adequately defined by any definition contained within Section 1.2, that purpose shall be deemed to be fall within Column 5 of the Table of Zones."

"This zone is intended to accommodate the principal industrial functions in the Shire. Service industries and light industries will be the main land uses found within this zone, although general industries may also be conducted where a development permit is issued following a code assessment process. A range of ancillary support uses which require a development permit in accordance with Section 2.2.1c are available. These uses will generally support or complement industrial uses located within the zone. It is not intended to permit the dominance of industrial areas, particularly in arterial road locations, by commercial enterprises."

[46] The Noosa Heads / Noosaville Locality Strategic Plan Map forms part of the Strategic Plan, and by reference to the Table of Zones in the Schedule it can be seen that the new Shire Business Centre is contained within the Commercial A zone, and the Noosaville and Noosa Junction Business Centres are contained within the Commercial B zone. Relevantly a shop is a Column 3B use (that is code assessable), nurseries and showrooms are Column 4 uses (impact assessable) and a warehouse is a Column 5 use, that is impact assessable and inconsistent with the intent of the zone. In the Commercial B zone, nurseries and showroom are Column 3B uses, while warehouses and shops are in Column 4. Given the approach of the parties to the planning issues, it is necessary to set out the Industry Zone Table in full:

(despite this, Schedule 8 of the IPA may require certain development to follow Code or Impact Assessment Process)

Development to follow a Code Assessment Process

Development to follow an Impact Assessment Process

Development to follow an impact Assessment Process

(Development inconsistent with the intent of the zone and unlikely to be approved unless consistent with the Strategic Plan and any relevant Development Control Plan)

[47] It can be seen that a shop is a Column 5 use, nurseries and showroom fall into Column 4, while a warehouse is a Column 3A use, that is self assessable, subject to the proviso set out in the heading.

[48] The court will have to determine what weight, if any, should be given to the Draft Scheme and I will deal with that later in these reasons. Council's submission is that the court should afford considerable weight to the Draft Scheme, while Bunnings, although seeming to accept that some weight should be given, submit that it is less important. This is a reflection of the completely contrary approaches of the parties to the issue of conflict with the planning instruments.

[49] Division 2 of Part 1 (Introduction) deals with Strategic Framework and Community vision. In paragraph 1.5 under the heading Regional Conflict, the draft plan repeats almost word for word a statement from the Strategic Vision in the Strategic Plan namely:

"Noosa Shire is the most northern of the three local governments that make up the sub-region of the Sunshine Coast. It is the smallest of these in both area and population. As a consequence, a number of the services that support its urban and rural populations are found outside Noosa Shire."

[50] Paragraph 1.7 sets out the Strategic Framework Strategy of the uses that are under consideration here are (relevantly):

"1.7.7 Commercial and Retail Development

...

b) With the exception of the new Shire Business Centre, additional commercial development is confined to existing business centres ...

c) The scheme allows for a substantial Shire Business Centre off Eenie Creek Road, Noosaville. This centre will be the business and employment focus of the Shire and amongst industrial, commercial and community facilities will include a shopping centre anchored by a discount department store."

[51] The business centres referred to are the existing centres at Noosaville and Noosa Junction.

[52] Relevant to traffic issues that arise on the appeal is 1.7.16 relating to Transport Infrastructure and in particular:

"(f) Protection of the views and vistas obtained from the major road network is important and controlled through the planning scheme.

(g) Carparking and driveways do not dominate development and site planning and landscaping mitigates the visual impact of vehicle spaces. Carparking provision includes both on-street and off-street parking consistent with the character of the localities."

[53] It is common ground that the Eumundi Road is part of the Shire's major road network.

[54] Part 2 deals with interpretation of the Scheme and there are a number of definitions which are relevant. In certain instances, the Dictionary (at 2.10) sets out descriptions or definitions of uses and classes of uses in a shaded box which, by virtue of 2.3.2, is text for guidance only, but is not part of the planning scheme.

[55] It is clear that in this section, Council has recognised the restrictive nature of the definitions in the Schedule to the 1990 scheme; and it is probable that it has recognised the way in which uses have changed, such that the simple definitions of earlier planning schemes are less helpful as an aid to assessing a proposed use. It may well be that some of these definitions will be refined prior to the commencement of the Noosa Plan.

[56] The following definitions (or descriptions) arise in the evidence:

"Industrial Business means the conduct of an industrial business activity, where goods or products are produced, manufactured, dismantled, altered, re-packaged, repaired or stored at a scale of greater than that defined by retail business. The use includes the sale of goods, resulting from such operations, provided that sales space does not exceed 20% of the use area. Any space dedicated for administration or accounting work in connection with such operations does not exceed 20% of the use area. The term includes the following types:

Type 1 Warehouse: The use of premises for the storage of goods, merchandise or materials in large stocks (whether or not such storage is required for an adjoining shop or other commercial premises), pending their distribution or wholesale. The use includes a warehouse or self-storage but does not include a retail business.

...

Retail business means the conduct of a business activity, where goods or services are displayed or offered for sale to the public. The term includes the following types:

...

Type 4 Showroom: Premises exceeding 250m² gross floor area for the display and sale of goods that are primarily of a bulky nature and of similar type including but not limited to boats, electrical goods, bulk stationery supplies, caravans, furniture, floor coverings, sporting equipment and apparel, motor vehicles, motor accessories and the like. The term includes any associated sale of spare parts for such goods**.**

...

Type 6 Hardware: Premises for the display for sale (including hire) of hardware and trade supplies including household fixtures, timber, tools, paint, wallpaper, plumbing supplies and the like, but the term does not include the sale of kitchen or dining wares, picnic ware, camping goods, garden products, furniture or other household products or home wares."

[57] Part 3 sets out the Desired Environmental Outcomes for the Shire. In 3.1.3 under "Commercial & Retail Uses" it is stated:

"(b) A hierarchy of centres with a range of Commercial and Retail business uses provide suitable levels of amenity, service and access to the community, consistent with the community's location and needs and based on:-

i. a proportion of the Shire's higher order needs fulfilled by centres in other areas, particularly the key regional centre for Maroochydore;

ii. the Shire Business Centre, as the highest order centre within Noosa Shire, developed in stages consistent with the needs of the population of the Shire and northern areas of Maroochy Shire;

iii. business centres at Cooroy, Noosa Junction, Noosaville and Tewantin;

"(e) Industrial Business Uses

A hierarchy of industrial ... uses:-

i. provides suitable levels of service and employment to the community;

vi. results in a proportion of the Shire's higher order needs being fulfilled by facilities located in other areas, particularly the key regional centre of Maroochydore;

vii. protects industrial areas, ... particularly from the encroachment of incompatible development, for the ongoing benefit of the community; ..."

[59] Part 11 is the Noosaville Locality Plan which sets out under 11.1.3 assessment tables for material change of use in each zone in the locality including (f) Business Centre Zone, (g) Shire Business Centre Zone and (i) Industry Zone. At 11.8 the Plan contains Overall Outcomes for the locality which include:

"(g) low rise, low scale buildings ...and roof forms that blend with the skyline ...

(m) ... Eumundi Road (is) protected as (part) of the Shire's major road network;

(n) The function ... and visual amenity of the Shire's major road network are protected ..."

That paragraph then deals with the outcomes for the zones in the locality:

i development accommodates uses that do not detract from the role of the Shire Business Centre as the principal business centre for the Shire;

ii development continues to serve the local needs of the Noosaville community and visitors;

v) For the Shire Business Centre Zone -the Shire Business Centre-

i is the principal business centre for the Shire, servicing Shire-wide business and employment needs by providing for a range of Business Uses as well as administrative, community, and open space functions;

ii is a multi-function employment node forming the major focus of employment growth in the coast area of the Shire;

iv is developed at a low scale and density with distinctive and unique design elements, determined by the setting and recognisable as a development in Noosa Shire;

v comprises buildings of low rise form separated by attractive and low key informal spaces that are integrated with landscaping and open space areas;

x retains development capacity within the Shire Business Centre in the longer term to take advantage of potential new employment opportunities;

xi is developed into precincts, as depicted on Schedule 4 - Shire Business Centre Map ... including -

A) Business Precincts (B1-B2), which provide for the highest order of retail development in the Shire and comprises the retail core for the Shire Business Centre site, with associated car parking generally located with Precinct B2;

B) Precinct B3, which provides for showroom and office development;

i consists of the Noosaville Industrial Estate, being the principal industrial centre for the Shire;

ii accommodates industrial functions including Industrial business Type 2 to the exclusion of incompatible uses including Residential Uses, Community Uses, Commercial business and most sport and recreation uses and Retail business uses;

v is developed in a fashion that does not detract from the character of its locality or impact on the major road network;

vi provides important industries and service-related businesses to the whole of the Shire, but particularly the coast area and the north-east area of the Maroochy Shire; and

[60] In the course of the hearing, a possible issue of construction arose in relation to (x)(ii). Does it mean that all retail uses are excluded as incompatible uses, or does the word "most" qualify "sport and recreation uses" and "retail business uses". It is tolerably clear to me that the later construction should be preferred because when one refers back to Table 11.9, the Assessment Table for the Industry Zone, some retail business types are contained in Column 1.

[61] Division 18 of Part 3 deals with specific outcomes and possible solutions for the locality 11.11 deals with built form, 0.7 refers to height:

(a) are low rise and have a visual bulk and an architectural scale consistent with structures on nearby land.

[62] Probable solutions for the Industry Zone provide that buildings have a maximum height of 10m.

[63] Division 27 of Part 3 then deals with specific outcomes and probably solutions for the Industry Zone and the following outcomes may be relevant:

0174 The frontage of each site contains landscaping without adversely screening the business or visitor carparking.

0176 Development frontage Walter Hay Drive, Eumundi Road and Eenie Creek Road is sympathetic to the character of the area and suitable for its position along the entry roads to the coastal urban part of the Shire."

"Visual amenity and character

0178 Buildings are designed and sited to provide visual interest and amenity by-

a) providing well articulated buildings with strong horizontal and vertical design elements and features;

b) using a variety of external building materials within external walls where such walls are visible from the street; and

c) providing for interesting and varied site layouts and roof designs;"

[65] There was also some reference in the expert planning evidence to some of the Codes, which are contained in Part 14 of the Draft Plan. 14.14.2 sets out the overall outcomes for the Business Use Code which include the following:

"(a) Existing and future populations have access to an adequate level of goods and services; and

(b) The built form character and amenity of business establishments meet the expectations of the Noosa Shire community in terms of providing-

i human scale;

ii integration with natural landforms and landscape features;

iii integration with the existing character of the streetscape and surrounding area;

iv visual and physical connectivity between indoor and outdoor spaces;

vi logical traffic arrangements without congestion or lengthy delays."

[66] Division 9 of Part 14 sets out the Advertising Devices Code, and it is Council's contention that the standard Bunnings Warehouse logo which will be painted on the building (see Appendix B, Drawing No 0302-08 F to Mr Chenoweth's report Exhibit 8), offends this Code because of its sheer size and form.

[67] There is no controversy in this appeal that the principles to be applied in construing planning instruments, are those referred to with approval by Wilson SC DCJ in Kotku Education and Welfare Inc v Brisbane City [2004] QPEC 68. They are conveniently set out in Council's written submission (at 16):

"(a) It has long been accepted the planning schemes are largely the work of town planners, not parliamentary counsel, and they should be read as a whole, and applied in a practical and common sense, and not overly technical way, and in a fashion which will best achieve any evident purpose.

(b) It is seldom appropriate in matters such as these to rely on any individual statement of intent or aim or objective as determinative. It is rare that an express imprimatur or injunction can be found for a particular proposal. Almost inevitably a diligent search of the planning documents can unearth passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on individual passages.

(c) The planning documents, while they are given the force of law [originally by s. 2.1.5(9) of the Local Government (Planning & Environments) Act 1990 and now s. 2.1.23 of IPA], are not drawn with the precision of the Acts of Parliament. Statements of intent or aims and objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide a particular proposal should be approved or rejected. So such statements should be read broadly.

(d) A strategic plan sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted.

(e) The interpretation of the strategic plan ought to involve a "common sense approach".

(f) In interpreting a strategic plan the document should not be read too narrowly; it should be read broadly rather than pedantically and one should adopt a sensible practical approach.

(g) Conflict alone may not rule out a particular proposal. Any conflict must be plainly identified and my be excused if there are sufficient planning grounds to warrant approval despite the conflict.

(h) Because planning schemes are acknowledged to reflect no just present use, but future planning intent and aspirations and, for that reason, the proper approach of this Court to matters of planning policy must be one of restraint.

(i) If a statement can be found which clearly sets out a fundamental principle of the planning scheme and which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document (Drivetype Pty Ltd v Council of the Shire of Caboolture & Director-General Department of Transport [1995] QPLR 141 at 143 J-K."

[68] The Draft Plan was released for public exhibition in October 2004. According to its written submission (paragraph 58) Council has prepared a report relating to properly made submissions in accordance with s. 17 of Schedule 1 of the Integrated Planning Act.

[69] Accordingly, it is accepted by Bunnings that the Coty principle is relevant (Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117). It is succinctly summarised by Fitzgerald P in Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 (at 61) thus:

"Coty establishes no more than that, when determining whether to approve or refuse a planning application , it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed, and usually will be only one of the factors to be considered, although in a particular case it might be decisive."

[70] The arguments of the parties are succinctly summarised in the written submissions.

[71] Council argues that the Court should afford considerable weight to the provisions of the draft plan because:

"It is clear that a great deal of consideration, careful thought and consultation has gone into the preparation of the Draft Noosa Plan.

Moreover, there is absolute consistency between the objectives sought (sic) to be achieved by both the transitional and draft schemes."

[72] Bunning's argument is that "the appropriate course is to consider the proposal's compliance with the draft scheme in a more global way with a view to ascertaining whether approval of the development application will frustrate the implementation of the new scheme. It is unnecessary and inappropriate to assess compliance against each and every of the specific outcomes contained within the scheme. Instead the appropriate course is to consider whether the proposal "cuts across" the overall objectives of the draft scheme."

[73] Council does not suggest that this Court assess the proposal "against each and every of the specific outcomes within the scheme"; rather its fundamental submission is that the Draft Scheme refines and continues a number of key planning strategies from the 1977 scheme which strongly militate against approval. Although Bunnings advocate a more global approach, I note with interest that at least in one instance it has resorted to the detail of the Draft Plan where it submits that there is support for the proposal. I refer to paragraph 155 of its submission.

[74] From the introductory sentence of that paragraph, it is clear to me that Bunnings does not contend that the draft plan has, in any significant way (apart from that one instance) departed from the "themes and objectives" of the 1997 scheme. I think that concession is fairly made, and I am content to proceed on the basis of the more global approach, taking into account the stage which the Draft Plan has reached.

[75] Before dealing with the merits issues raised on appeal, it is important to deal with a number of factual issues. Given Council's submission that the proposal fundamentally conflicts with the Strategic Plan, it is perhaps not surprising that on planning issues there was no consensus at all between the expert planners called by the parties. The conclave held on 23 June 2005 between Professor John Brannock (for Bunnings) and Denis Brown (for Council) could find no agreement between them as to the critical planning questions to be answered by this court. The Conclave Report (Exhibit 3) is set out in full:

Is the proposed development consistent with the Industry Zone?

Is the proposed use an introduction of a non-industrial use into the Industry Zone?

Does the proposed development conflict with the Shire Business Centre provisions?

Does the proposed development generally comply with the Planning Scheme?

Is the proposed development consistent with the provisions of the current Planning Scheme relating to the character of development?

Does the proposed development generally comply with the draft Noosa Plan?

[78] The urban economic experts, Mr Leyshon (for Bunnings) and Mr Norling (for Council) had more conclave success than their planning expert counterparts. They agreed that the Bunnings warehouse on the site would service the whole of the Shire and the northern part of the Maroochy Shire to the south. They agreed on a current population of 58,000 with an expected increase to about 65,000 in 2011. This closely accords with the projected total population of the Shire referred to in 24.3 of the Strategic Plan, which figure has been amended I am told to 61,350.

[79] The evidence from Mr Duncan, one of Bunnings General Managers, is that the present store which is on Eumundi Road 600 metres to the east, and which has a gfa of 2960m² has a turnover of $11 million annually, of which 50% is to trade customers, e.g. builders, plumbers. He says that this proportion is much higher than the national average of 20%. Their research suggests that in the new store, the level of trade custom will remain at roughly the same, i.e. $5.7 million per annum while the retail sales to the public will increase, and he expects a total of $20 million for the whole store. Reflected as a percentage, that equates to approximately 28% of sales to trade customers. In their joint report; Messrs Norling and Leyshon agreed upon a description of a Bunnings mega hardware store operation of the type proposed for the site:

"Megahardware stores (such as operated by Bunnings Warehouse) retail a very wide category of products. A single Bunnings Warehouse store can carry between 40,000 and 60,000 line items. Such stores generally contain more than 8,000 sq.m of floorspace. The core range of products sold includes tools, hardware items, home improvements, timber, nursery products and swimming pool products. These megahardware stores also retail a range of other products commonly sold by non-hardware stores. This includes furniture, kitchen equipment, floor coverings, blinds, electrical appliances, homewares, various household appliances and auto-related products. Due to this large range and overlap of products with those sold by other stores, the pool of available retail expenditure is necessarily rather large..."

[80] Council called Mr Ian Wakely to give expert evidence about the nature of the Bunnings business. He conducted a survey at the Bunnings mega hardware store at Morayfield, and it is accepted that this is an appropriate comparison to the proposed Noosa store. He is a retail analyst and market researcher. Mr Leyshon gave evidence about these issues on behalf of Bunnings, although no-one on behalf of Bunnings had undertaken a survey of the type undertaken by Mr Wakely.

[81] It was agreed between them, and I accept, that Bunnings stores "normally operate on both a retail and trade/wholesale basis in its stores, although they are predominantly retail", and that Bunnings "normally sells to members of the public".

[82] I accept the joint conclusion of Messrs Norling and Leyshon that "the proposal represents a major employment ... activity serving a population that extends beyond the shire boundary". I accept Mr Duncan's evidence that the new store will employ approximately 150 people as opposed to 39 presently employed at the existing store.

Does the Proposal conflict with the Planning Instruments

[83] Council's submission is uncompromising. It submits that the proposal is in "stark conflict" with the planning scheme, and is "squarely in conflict" with the strategies enunciated in the Strategic Plan and refined in the Draft Noosa Plan dealing with (inter alia) a detailed hierarchy for the provision of business, commercial and retail facilities in Noosa; particularly focussed on the SBC as the "pinnacle of that hierarchy" to the exclusion of short term perceptions of demand, and the maintenance and enhancement of important principles relating to scale, appearance, form and integration of all forms of development, and loss of industrial land.

[84] Based on the evidence (primarily) of Professor Brannock, Bunnings argue that the proposal does not conflict with the Strategic Plan in that it is not in conflict with the intent for that particular site in the industry zone, and indeed Bunnings go further and submit (with reference to the evidence of Mr Leyshon and Professor Brannock) that the Strategic Plan specifically encourages a proposal such as this because it is a "service related industry" and/or "supports or complements industrial uses in the zone, and/or is an "ancillary support" use.

[85] Although this is the position finally taken by Bunnings, it has to be said that the case presented focussed mainly on planning grounds, and in particular need, which no doubt provoked Council's submission that the approach taken by Bunnings seemed to assume conflict with the Strategic Plan. I will deal with the central issues in turn.

[86] The landscape architects Mr Chenoweth (for Bunnings) and Mr Van Pelt (for Council) agreed at conclave:

"1. The proposed Bunnings building will be a large bulky built form with a single roof. It will not be at human scale nor will it be neither distinctive nor unique to Noosa Shire.

2. The Noosa Shire Strategic Plan intends that business, retail and administrative buildings are distinctive and unique, at human scale and with designs determined by their settings, with indoor/outdoor integration."

[87] Professor Brannock agreed in cross-examination that the building could be properly described as a "big box". The case presented by Bunnings, mainly through Mr Chenoweth, is that these design features are softened by the set back of the building of 120 metres from Eumundi Road, the extensive landscaping, and most importantly that the building will be set down from the road (because of the natural scope of the site, and the extensive cut at the front of the site). Mr Chenoweth provided a sight line sectional diagram which is Figure 2 at page17 of his report (Exhibit 8), which shows this effect. Nevertheless, all witnesses accepted that if constructed this will be the largest commercial building in the Shire, and will present inevitably as a large bulky box-shaped structure. The evidence establishes that the building is typical of the Bunnings mega hardware stores now established all over Australia. It is axiomatic, that for sound commercial reasons Bunnings want their warehouses to be visible, preferably from main roads, so that citizens can see the huge logo on the front of the building and be attracted to shop there. Professor Brannock, made much of the present uses of the industrial zone and I will turn to that issue in a moment. Although the nature of the business of the new Bunnings will be similar to that of the existing Bunnings, and also the Melco Mitre 10 Store in Venture Drive; the size and sheer bulk of the proposed building, together with a huge asphalt car park catering for 337 vehicles mainly at the front of the building on Eumundi Road, make this proposal a completely different entity in my view. It is true that the proposal will be a significant improvement visually to the present use of the land as a bulk landscape supply depot, but the same could be said of any other proposal to develop this site in the industry zone. I was quite unconvinced by Professor Brannock's evidence on this issue, in the sense in which he sought to meet the obvious conflicts in the Strategic Plan and schedule relating to scale and bulk, by constant reference to the nature of the present uses in the zone. At times in cross-examination he suggested that Mr Trotter was engaging in a piecemeal approach to the construction of the planning instruments. In my opinion, it was Professor Brannock himself, who did just this on a number of occasions to justify his point of view. By way of example, albeit in evidence in chief, he was asked about what I think is an absolutely clear statement of intent in the intent of zones in the schedule at 2.3.9 under the industry zone where (after referring to "ancillary support uses" in the zone) it is stated:

"These uses will generally support or complement industrial uses located within the zone. It is not intended to permit the dominance of industrial areas, particular in arterial road locations, by commercial enterprises." (my emphasis)

[88] His response was that the passage is less significant because Eumundi Road is already dominated by commercial enterprises, and scale, although relevant to this issue of domination, had to be seen in that light. I found his response unconvincing.

[89] As far as landscaping is concerned, it is conceded that the landscaping plan annexed to Mr Chenoweth's report (which plan he did not prepare) is a concept only, and I think Mr Van Pelt's criticisms of its lack of detail (particularly given the importance of the visual impact issue) are valid, however Mr Van Pelt conceded that a landscape plan could be prepared which would meet a lot of his concerns about screening particularly as regards the approach to the site from the west. Such a plan could be formulated and any development permit could be appropriately conditioned.

[90] In relation to the box-like design, I agree with Mr Brown that such a design offends those provisions of the Strategic Plan which focus on scale, integration of built development into natural land form (this proposal will require a 5 metre cut and 6 metres of fill to ensure that the parking and warehouse areas are at grade).

[91] When questioned about the present development in the industry zone, some of which is historical (that is approved under earlier planning schemes), Mr Brown acknowledged that some of these buildings were not well integrated, although no-one is saying that there is anything to rival the size of the proposed Bunnings. He made the good point that in recent development in this zone (that is under the 1997 Scheme), such as the new industrial buildings in Gateway Drive, are some examples of the clear intent of the Council in the Strategic Plan (reinforced and refined by the Draft Plan) to have built forms that do integrate into the natural land form, and which comply with the requirements of scale. Mr Van Pelt's photographs of these new industrial buildings show clearly the integration of the development by the clever use of colour and articulation. The new Gateway development presently under construction is planned to have buildings of a similar scale and integration.

[92] It follows that I am satisfied that the proposed conflicts significantly with the provisions in the planning scheme dealing with scale, appearance, integration and built form.

The Retail Hierarchy and the Shire Business Centre

[93] On the evidence, there can be no doubt that the proposed Bunnings warehouse will be a large retail (and therefore commercial) business in the Industry Zone and therefore not in the Shire Business Centre or either of the present Business Centres.

[94] In my opinion there is a clear, well defined plan for the retail hierarchy proposed for the Shire articulated in the Strategic Plan and confirmed and refined in the Draft Plan. In simple terms (and by reference to the words of the Strategic Plan itself) this can be summarised as an intention to:

1. Develop the Shire Business Centre to service the needs of the residents of the Shire as well as the needs of the residents in the north-east of Maroochy Shire (the very catchment to be served by Bunnings but from outside the SBC); and to provide for the highest level retail needs of those residents.

2. Shift the focus of the Noosa Junction Business Centre from servicing residents across the whole of the coastal area and visitors, to service predominantly local needs of Noosa Heads community and visitors, such needs to include retail.

3. Shift the Noosaville Business Centre from a focus of servicing the needs (including retail) of residents in the western part of the coast area in the Shire, to servicing increased local needs of the Noosaville community and visitors.

[95] The words of his Honour Judge Quirk in Overton & Anor v Redcliffe City Council and Family Assets Pty Ltd [2000] QPELR 250 at 253 are apposite here:

"The provisions with which we are concerned have fundamental importance to the establishment of a suitable and ordered hierarchy of commercial development. As I have indicated to ignore these provisions could have fundamental and far reaching consequences for expectations based on the Strategic Plan as it is presently drawn."

[96] The undeniable facts are that if constructed this will be the largest single retail building in the Shire, on industrial land only a short distance from the Shire Business Centre. In my opinion, this involves fundamental conflict with the strategies set out in the Strategic Plan for retail development, which strategies are continued in the Draft Plan.

[97] Much time was taken up with the issue of whether or not the proposal could be accommodated in Stage 2 of the SBC. This came about because a number of Council witnesses (Mr Norling, Mr Brown) said that it might be able to be accommodated if there was some variation of the Master Plan which is still not finalised. It is common ground that it could not be accommodated in Stage 1. It has never been a "better sites" case as Mr Hughes, perhaps ironically, suggested. I say ironically because more than once he suggested that if it could not fit in the SBC, then the best place in the Shire was this site. There is no evidence that Bunnings have ever approached Council with a view to having a store in Stage 2. Given the approach of the company to the acquisition of new sites in the evidence of Mr Duncan, it is unlikely that Bunnings would be interested, however it is unnecessary for me to take that any further.

[98] The importance about the SBC and the Business Centres is not whether or not a development like this could be accommodated in the SBC, but rather whether such a proposal on a site outside the areas zoned for such activities conflicts with the Strategic Plan, which, in my opinion it does so significantly.

[99] The Council in its grounds for refusal also relied upon a conflict with Planning Policy No 39 in that the proposal has the potential to adversely affect the viability of the SBC. There is insufficient evidence to support this ground. The evidence establishes that Stage 1, now being developed, is substantially let and in my view, based on the evidence of Mr Norling and Mr Leyshon, Bunnings is unlikely to affect the viability of Stage 1. Mr Norling said that it may mean that the showroom component in Stage 1 may ultimately attract different types of tenants, but he accepted that the long term viability of Stage 1 would not be affected. There is insufficient evidence to make any finding in relation to Stage 2 because it is only at the conceptual stage and includes large areas that will not be affected by a Bunnings.

[100] Mr Norling's evidence on this issue was largely uncontested. His evidence is that of the 101 hectares of land in Noosa Shire within the industry PDLU 72 hectares are in Noosaville. There are smaller areas in Cooroy, Pomona and Kin Kin. He reports that there are 16 hectares of vacant land remaining in Noosaville in this zone, and that as a consequence of existing take-up rate the remaining available industry designated land is likely to be exhausted within approximately 3 years. His opinion therefore is that the alienation of 3 hectares of such land for retail purpose, represents a significant proportion of the total vacant land remaining. Council argues that the proposal thus offends the various statements in the Strategic Plan which focus on protecting industrial land. It is clear that the industry land in Noosaville is intended to be used for industrial purposes (or support uses), and the alienation of 3 hectares of the remaining land for a non-industrial use is significant. As against this, Mr Leyshon pointed out that if this proposal goes ahead the 1.2 hectares of land on which the present Bunnings operates will be returned as it were to the industrial land bank. Bunnings did criticise Council for not anticipating a shortage of industrial land in its planning; by not designating more land for this purpose if it had been seen as a problem. I don't think this is a fair criticism because the Council cannot do this of its own volition without regard to the overriding authority of the SEQ Regional Plan 2005-2026 which sets the urban footprint (which includes land for industrial purposes) for Shires (including Noosa) in the region.

[101] In my opinion, there are a number of clear provisions in the Strategic Plan which evince a desire to protect industrial land in the Noosaville area for the development of industrial (and support) uses. I need only refer to one of the "key issues" referred to in s. 19.5.1.3. It follows that the net loss of industrial land of approximately 1.8 hectares, in the circumstances outlined by Mr Norling relating to the uptake of such land, would involve conflict with these provisions. However, on its own I would not regard this issue as one involving fundamental or significant conflict with the Strategic Plan. It simply adds to the level of conflict already identified.

[102] One of the central planks to Professor Brannock's opinion that this proposal does not conflict with the Strategic Plan is that it is a "supporting use" in the Industry Zone and a "service-related" business consistent with the objective for the zone in 19.5.1. I accept that the Bunnings warehouse proposed does have features consistent with an industrial use eg. the shape of the building, its trade area, and use of forklifts, but it is clearly in my opinion, predominantly a retail use. I accept that the present character of the uses in the industry zone is mixed, comprising pure industrial, some commercial (including retail) and serviced related. The evidence relating to the many premises depicted in the photographs, and those tendered during the hearing by Professor Brannock is quite general, except in relation to a number of premises where a lot more detail was provided eg. The Melco Mitre 10 store in Venture Drive, and the Gateway development to the west of the site on the other side of Gateway Drive. It is common ground that many of the developments depicted in the photographs were approved under earlier schemes, and I accept the evidence of Mr Brown that it is probable that prior to the evolution of the key planning strategy centred on the SBC (which was in the 1997 scheme but under consideration for some years prior), there had been nowhere else to put many of these developments because of a paucity of commercial land in the Shire. A lot of the evidence from Professor Brannock about the nature of some of the uses on these other sites was based only on observation, and there has been no attempt, for example, to assess the proportion of non-industrial uses that occur on these various premises or to what extent retail uses support, service or are ancillary to industrial uses. I do however accept his evidence that the present uses in the zone are mixed, although there is nothing that compares in size and scale to this proposal.

[103] In my opinion, the heavy reliance on 19.5.1.1 of the Strategic Plan by Bunnings is misconceived. This proposal will be a very large retail facility. When the plan speaks of this area (the industrial estate of Noosaville) providing important industries and service-related businesses to the whole of the Shire, and particularly the coastal area and the north-east of the Maroochy Shire, it is clearly so stating in the context of industrial uses, not intensive retail facilities like the one proposed. This construction is strongly supported by the reference in 1.3 in the objectives of the Plan to PDLU's. When all the relevant provisions are read as a whole, it is clear to me that any support use within a PDLU is to "be integral to and service" the PDLU, which this proposal does not, and to that extent the used is "not supported by the Strategic Plan". In reaching that conclusion, I am not overlooking the fact that the trade area in particular will service the industry zone, as well as the wider Shire, but overwhelmingly for the reasons I have stated, the proposal will service Shire wide retail needs, and from a site in the industrial zone. On this issue, I strongly prefer the evidence of Mr Brown to that of Professor Brannock.

[104] The Strategic Plan (and indeed the Draft Plan) is replete with reference to the need to protect main roads such as Eumundi Road, which on the evidence is at present the major access road to the Shire from the west. It is common ground that the proposal, with 337 at grade parking spaces, will be a significant traffic generator, and that design, peak period traffic generations would significantly exceed those of an industrial development having identical floor area. The experts, Mr Holdsworth (for Bunnings) and Mr Beard (for Council), agreed that following construction of Walter Hay Drive and Eenie Creek Road Stage 2, the Eumundi Road intersections most affected by the proposal, will be able to accommodate the traffic generated, provided the Rene Street roundabout is upgraded in accordance with Mr Beard's sketch 1577SK.1. These major road works are presently under construction and provided the use did not commence prior to completion, then the evidence does not establish a major conflict with the Strategic Plan on this issue. The traffic engineers disagreed on the accuracy of the traffic flow predictions, and on whether the use would be a significant regional traffic generator as opposed to a significant local traffic generator. These issues are not particularly important given the consensus between the parties reflected in the agreement reached between Mr Beard and Mr Holdsworth. It follows that on the traffic issue alone, there would be no basis to refuse the application provided it was appropriately conditioned.

[105] In Woolworths Limited v Maryborough City Council & Anor [2004] QPELR at paragraph 48, I set out a summary of the relevant principles as advanced by Mr Hughes SC in his capacity as counsel for the co-respondent in that case:

""Characterisation" is not to be approached through a meticulous examination of the details of processes or activities or through a precise cataloguing of individual items or goods dealt in. (Shire of Perth v O'Keith [1964] HCA 37; (1965) 110 CLR 529; 534-5)

What is required is the determination of the appropriate genus which "best describes" the activities in question.

"If the activities, processes or transactions are capable of being treated as all or the majority of the species of genus, then that genus may properly be regarded as describing the purpose of the use of the land." (Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGERA 305, 311)"

A distinction exists between the nature of the use of the land and the purpose for which it is being used. The purpose will be characterised by a number of activities including a cluster of incidental and subordinate activities that will vary from time to time. The approach to be taken is one of construing the use broadly and liberally and confining the user to a precise activity is not required. (North Sydney Municipal Council v Boyts Radio and Electrical (1989) 67 LGRA 344, 353)

The court must characterise the use in a practical and common sense way. (King v Lewis (supra))

The inquiry to be made is whether the use complained of really and substantially is a use for the designated purpose. (Shire of Perth v O'Keefe (supra))"

[106] In this case, the characterisation issue is important but not determinative. Bunnings in its final submission makes the point that irrespective of how the proposed use is characterised, it is impact assessable either under Column 4 or Column 5 of the Table of Zones. To be added to the above list is the "best fit" approach which is referred to in Livingstone Shire Council v Brian Hooper & MB Architecture & Ors [2003] QPEC 63 at 14 which is appropriate where there are two defined uses (or more) each of which are apt to cover a particular proposal. I have previously referred to s. 2.2.7 of the Schedule which applies if, in the opinion of the decision maker, a particular purpose is not adequately defined by any of the definitions contained in s. 1.2. In that event, the purpose is deemed to fall within Column 5 of the Table of Zones.

[107] The reason that this topic took up so much time in the hearing is because of the effect of s. 6.1.30 of the IPA. If the application was an application which, if it had been made prior to the commencement of the IPA it would have been:

(a) an application for re-zoning (ie. to amend the planning scheme), in that case s. 4.4(5A) of the repealed Act would apply; or

(b) an application for a town planning consent permit, in that case s. 4.13(5A) would apply.

[108] As I have noted, whatever my opinion, the proposal is to be assessed having regarding to the Weightman principles.

[109] I can deal quickly with one of Bunnings' arguments which is summarised succinctly at paragraph 170 of its written submission:

"The Respondent contends that the proposal was incorrectly described as a "Showroom" and "Nursery", on the basis that the proposal is a "Shop". This position is entirely inconsistent with the council's position with respect to the 1998 approval of the Melco Mitre 10 hardware and timber outlet. There is no reason to treat this application differently. The scheme provisions are the same, the land use activities, including the variety of goods sold are, for town planning purposes, indistinguishable."

[110] The Melco approval was given in 1997. I agree with the submission that given the similarities between the Melco Mitre 10 hardware and timber store and the present Bunnings; the position now taken by Council is inconsistent with its decision then. However, it is not suggested that that decision is binding on me or even persuasive. All it amounts to is a decision made by Council on the recommendation of one of its officers to approve a similar (albeit substantially smaller) use in Venture Drive (not on Eumundi Road) and in the industrial zone.

[111] One of the key factual issues is whether or not "the primary purpose" of a Bunnings store is displaying "goods of a similar type ... for sale to the public" which is an essential element of the definition of "showroom" in the planning scheme schedule.

[112] As to whether or not Bunnings sells goods of a similar type, there is some agreement between the experts, but some significant divergence between the parties:

"It is agreed that Bunnings presents to the consumer a broad theme around hardware, DIY, home building, home renovation and home improvement. It was agreed that Bunnings stores sell goods across a broad product range and with extensive depth in its theme areas. It was agreed that the products stocked in Bunnings Morayfield are diverse and would not be considered to be of a similar type or similar nature at the individual product level."

[113] The expression is also used in the definition of a retail business Type 4 Showroom in the draft scheme, which also refers to "bulky goods".

[114] There is no doubt that Bunnings sell a widely diverse range of products generally in accordance with the broad themes referred to in the agreement between Mr Wakely and Mr Leyshon. Mr Duncan gave evidence which is not contested that the present Bunnings provides 16,000 product lines, and the proposed store would stock between 32,000 and 33,000 product lines. The diversity of products stocked at Morayfield is demonstrated by Table 3 at page15 of Mr Wakely's report.

[115] Both parties have referred in some detail to the judgement of Chesterman J in Longhurst & Another v Austexx Developments Pty Ltd & Anor [2003] QCA 576, in which his Honour construed the meaning of "goods of a similar nature" in the Logan City Planning Scheme. Both parties appear to accept that "similar type" and "similar nature" are similar concepts. Relevantly, the Macquarie Dictionary defines "type" as "a kind, class, or group as distinguished by a particular characteristic"; and "nature: (relevantly) as "character, kind or sort". Chesterman J said (at 24):

"[24] The requirement that goods be of a similar nature is a requirement that they have some attribute or characteristic such that they can be regarded as similar by reference to everyday experience. The definition in the Planning Scheme contains no indication of the criteria which should be used to determine whether goods are similar in nature. It seems to me that the only appropriate test is one of purpose or functionality. Goods are similar in nature if they serve the same purpose or have the same function. There is obviously some inexactitude in such a test and one should not be too narrow in attributing a function to goods."

[116] Accepting that the concepts can be construed in the same way (although Mr Wakely thought "type" was more restrictive), it is difficult to see how it could be said that a Bunnings store has, as its primary purpose, the display of goods of a similar type to the public. The sheer diversity of the product range to which the experts referred, and the diversity of products within the various categories set out in Table 3 of Mr Wakely's report (Exhibit 16) strongly militate against such a conclusion. After this passage in Cherstman J's judgement_,_ his Honour referred to a number of products set out as examples in the particular definition under consideration. I respectfully adapt his Honour's words in saying that I would not, on the basis set out above in his judgment, or indeed on any other, regard brooms and bricks, cement and cook tops, coat hangers and car cleaners (a very small sample) as goods being similar in type.

[117] Bunnings also submit that in part, the proposed use is as a "nursery". It is common ground that although the nursery will retail plants, trees and shrubs, none of these will be grown on site. All will be purchased from growers off-site for on-sale to the public. It follows therefore that the proposed use is not as a nursery because it does not qualify in one fundamental respect. For this reason, in my opinion s. 2.2.2 does not apply to the Bunnings operation.

[118] Bunnings employs a very clever "warehousing" technique ie. all goods not actually on sale to the public are (wrapped in plastic sealant) stored on industrial strength racks above the displays of goods on sale. It means that unlike the former BBC Hardware chain which Bunnings took over, Bunnings (although styling itself as a warehouse) does not store goods, merchandise or materials at premises other than their own retail outlets. It follows therefore that fundamentally, the proposed use does not fit with the definition of "warehouse" in the schedule.

[119] Mr Leyshon and Mr Wakely agree that Bunnings sells goods of a bulky nature, however at the time of the conclave neither party had undertaken any assessment of the extent of sale of such goods. This was undertaken later by Mr Wakely. There is a dispute as to his findings, primarily as between Mr Wakely and Mr Duncan. The term "bulky goods" appears only in the draft scheme, so its relevance to the characterisation issue is accordingly limited.

[120] The dispute about bulky goods centres on Mr Wakely's estimate that the Bunnings store at Morayfield trades in bulky goods at 38% of its overall trading. Mr Duncan referred in his evidence to an internal audit undertaken by Bunnings which suggested a much higher level of trade in bulky goods than that, and after seeing Mr Wakely's figures, Mr Leyshon conducted his own survey at Morayfield, although not to the detailed extent of Mr Wakely. Mr Leyshon, in his oral evidence concentrated on some lines, e.g. paint, to which Mr Wakely had ascribed a nil percentage. Mr Wakely later agreed that 20 litre and 15 litre tins of paint are "bulky goods" by reference to the definitions he adopts such as "awkwardly large, unwieldy". As against that, one must have regard to the estimated percentage of trade in the proposed store which will involve retail sales to the public (on the evidence somewhere in the range of 70-80%). It appears that Bunnings, as part of its own internal audit to determine the extent to which it trades in bulky goods, has used as its basis volume of goods on display, whereas Mr Wakely has used floor area. This is clear from Exhibit 54 which sets out the Bunnings figures. Mr Wakely to some extent accepted Mr Leyshon's criticisms of his methodology. There is simply insufficient evidence for me to determine this issue as a matter of fact.

[121] As I have noted, the drafters of the Draft Scheme have attempted to meet the more sophisticated ranges of uses that have developed over the last decade, by a different approach to defining uses and classes of uses. This includes an approach which provides guidance to those interpreting the scheme by use of what could be called 'generic' definitions which are said to be not part of the planning scheme. An example of this is "retail business' which is set out earlier.

[122] Under that generic definition, are set out the relevant definitions that are under consideration here. The drafters now appear to have considered that an important feature of a "shop or salon", is size, such that a proposal like this could never fit that definition. It is not suggested however that the interpretation section of the Draft Scheme provides any guidance to the decision maker in relation to an application such as this. Indeed, Bunnings would not qualify under the definition of "Hardware Store" in the Draft Scheme nor would any of the present hardware outlets in the Noosa Heads / Noosaville locality. Mr Brown provided a persuasive reason for this apparent anomaly in his evidence by reference to the categories of product referred to in the definition and to examples such as Reece Plumbing.

[123] With this in mind, I return to Council's submission that the "best fit" definition in the schedule is that of "shop". Council relies on the findings of Bignold J in Snowside Pty Limited v Holroyd City Council [2003] NSWLEC 136; [2003] 126 LGERA 279 which involved a proposal to develop a Bunnings mega hardware store having a total retail area of 11,970m² in an industrial area at Smithfield. A "shop" was prohibited development in the industry zone. It is clear from paragraph 9 of the judgment that the range of products and goods to be sold was very similar to that proposed here. "Shop" was defined as:

"a building or place used for the purpose of selling, exposing or offering for sale by retail, goods merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, or a building or place used for a purpose elsewhere specifically defined in this clause."

[124] The applicant's case was (inter alia) that the proposal was either a general store or mixed purpose development requiring town planning consent. Bignold J concluded that, on the evidence, the proposal was within the definition of "shop". He did so after rejecting the alternatives proffered by the applicant. The schedule definition is different, but there are essential similarities, and to that extent his Honour's conclusions are persuasive. Council's position at the time it provided further and better particulars of its grounds for refusal, was that the whole of the proposed use is considered a shop. Mr Leyshon's analysis in his report, particularly by reference to the extent to which wholesale trade will form part of the use, causes me to doubt the correctness of Council's position at that time. The "Bunnings concept" is comparatively new, and Mr Leyshon's evidence in particular leads me to the conclusion that the purpose proposed (when viewed as a whole) is not adequately defined in any of the definitions contained in s. 1.2 of the schedule, and it follows that the purpose is therefore deemed to fall within Column 5 of the Table of Zones ie. it is impact assessable and inconsistent with the intent of the zone and unlikely to be approved unless consistent with the Strategic Plan.

[125] It follows that I accept Council's central submission to the effect that the application conflicts extensively with the Strategic Plan, and is inconsistent with the intent for the industry zone in the schedule to the 1990 Scheme. It cuts across fundamental aspects of Council's strategic planning, which strategies are continued and refined in the Draft Plan. This is important because this Court (and its predecessor) have consistently recognised that it is not appropriate to approve a proposal which is squarely in conflict with formally expressed planning strategies. In Elan Capital Corporation Pty Ltd & Anor v B.C.C. & Ors [1990] QPLR 209, his Honour Judge Quirk said:

"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 the evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v Brisbane City Council 26 L.G.R.A. 322 at 327). As was observed by Carter J. in Sheezel & Anor v Noosa Shire Council 1980 Q.P.L.R. 130 (when he then constituted the court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question."

described by the Court of Appeal in Grosser v Gold Coast City Council 117 LGERA 151 per White J at [31] as a common sense (proposition) for which no other authority was required.

[126] The next stage in the Weightman exercise is to consider whether Bunnings have established sufficient planning grounds to nevertheless lead to an approval notwithstanding the level of conflict. Before undertaking the balancing process mandated by Weightman, it is necessary for me to consider the planning grounds raised on the evidence before me. By far the most important ground relates to the extent of need.

[127] The evidence establishes a planning need for a mega hardware store of the kind proposed by Bunnings. Whether the evidence points to an "overwhelming community, public and therefore planning need for the proposed use" as submitted by Bunnings is for me to determine.

[128] The principles to be applied are well known and, in this case, uncontroversial:

• need does not mean pressing need, critical need, widespread desire or anything of that nature. Rather, a thing is needed if its provision, taking all things into account, would improve the well being of the community: Cut Price Stores Retailers v Caboolture Shire Council [1984] QPELR126 at 131.

• A use is needed, if it would, on balance, improve the services and facilities available in a locality: Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515.

[129] It is trite that any established need has to be considered by the decision maker against the background of the relevant planning provisions in the particular case. Senior Judge Skoien said in Skateway Pty Ltd v Brisbane City Council & Ors [1980] QPLR 24 that a consideration of the extent of need is "subject always to other considerations of the town planing kind...". In Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 at paragraph 20, Moynihan SJA said:

"...need is a relative concept to be given greater or lesser weight depending upon all the circumstances which the planning authority has to take into account."

[130] Relevantly to Council's case on this issue are the remarks of his Honour Judge McLauchlan QC DCJ in Intrafield Pty Ltd v Redland Shire Council [2000] QPELR 337 at paragraph 7 where he said:

"... but in my opinion in this case the evidence does not go further than to show that the proposal would be an attractive additional choice for some of those motorists. That falls short of showing that the needs of motorists are not presently adequately catered for; ... given an addition to existing choices a number of consumers are likely to avail themselves of it as a matter of human experience. While this indicates a consumer preference, to an extent which is, however, debatable, it does not demonstrate inadequacy in the existing arrangements and therefore falls short of showing a planning need for the development."

[131] In any event, the extent of need as a planning ground is a most important consideration in undertaking the balancing process mandated by Weightman. It is at that point that the Court has to ask itself whether Bunnings has established that need as a planning ground (along with any others) to the extent that it is sufficient to overcome the level of conflict with the strategic plan identified earlier.

[132] In the joint report of Messrs Leyshon and Norling at paragraphs 9-11, they agreed that there is a need for a mega hardware store in these terms.

"9. The Catchment Area is served by a series of small hardware stores operating at the convenience level and several mid-scale hardware stores. However, the catchment Area lacks a megahardware store. A summary of the relevant competitive hardware stores is set out in TABLE 3.

10. The development of a new store of the scale proposed would improve the standard and quality of hardware services available to residents of Noosa Shire and thereby meets a community need for such services. The proposal would result in the relocation of the Bunnings Warehouse operation to a larger and improved standard of premises. Theis would result in Bunnings Warehouse being able to provide a greater range of goods, a safer operation and an improved level of facilities and services.

11. The proposal would generate several community benefits including a greater range of hardware goods, a higher standard and safer hardware store, an improved level of choice, increased competition and cheaper prices. These benefits are regarded as significant, due to the projected growth in population of the Catchment Are, the considerable distance o the nearest megahardware store at Maroochydore and the wide acceptance by the general public of the benefits of megahardware stores."

[134] The reference to "safer hardware store" is a reference to the present Bunning site which, I am satisfied, is overtrading to a significant effect such that the limited parking on site for both retail and trade customers leads to potential hazard because of the flow of traffic and the need for shoppers to park in unsafe areas such on the Eumundi Road verge.

[135] The nearest mega hardware store is at Maroochydore which is a 30 minute drive from Noosa. It is in fact a legacy store, i.e. it was originally a BBC mega hardware outlet which became a Bunnings outlet at takeover. According to Mr Duncan, it has a product range of around 35,000 items, ie. slightly more than the proposed Noosaville store. There was some anecdotal evidence from Professor Brannock and others to suggest that at present people are travelling out of the Shire to the Maroochydore store to gain the benefits of the much more extensive range offered there, but no persuasive analysis was produced by Bunnings to support this proposition. For example, there was no evidence from Bunnings of any internal analysis of the home addresses of shoppers at the Maroochydore store.

[136] There is also evidence before the Court of a proposal to place a Series 3 Bunning warehouse in a development known as Barnes site at Coolum just off the Sunshine Coast Motorway. Mr Duncan told me that Bunnings are presently building their first ever Series 3 building in Kalgoorlie. It caters for a much smaller catchment area and provides a product range of between 20,000-23,000. I accept Mr Leyshon's evidence that even if it is build the Coolum Store will not meet the need in this case. Also relevant to the extent of need is the fact that at present the Shire is being served by a number of outlets that offer similar goods and services, but without the extensive range. I have already referred to the existing Bunnings and Melco Mitre 10 sites which are the biggest, and there are a number of hardware / homeware type stores already operating in the Noosa Heads / Noosaville locality. These are enumerated at Table 6 of Exhibit 16 by Mr Wakely.

[137] Also relevant to the extent of need are the submissions made for and against the proposal by members of the public. Overwhelming of the approximately 150 properly made submissions, the submitters were against the proposal, although it is clear that most (if not all) of the adverse submissions were prepared in the same format as that submitted by Bunnings major competitor Melco. Council tendered statements from four residents of the Shire all of whom expressed the view that the proposal was not needed, particularly having regard to the type of community they perceived and valued in Noosa. None of these people were challenged by Bunnings, and it did not call any evidence from residents of the Shire in support of the proposal.

[138] In so far as increased employment is part of planning need and not a separate ground in itself, I accept the uncontested evidence that the proposal will add over 100 jobs in the Shire. Obviously, any industrial enterprise on the site would also increase employment but not to the same extent.

[139] It follows that I am satisfied on the balance of probabilities that Bunnings have established a significant need for a mega hardware store, but the evidence falls short of satisfying me that the need is "overwhelming".

[140] At pages 57-58 of its written submission, Bunnings sets out what it says are separate planning grounds established on the evidence. Some of these have already been dealt with under "need". The references to improved water quality run off, and visual amenity are comparisons made against the present use of the site as a bulk landscaping outlet, described by Mr Brown, I think correctly, as an "interim" land use. Although these issues are technically planning grounds it is highly probable that any industrial use of the whole of the land, including the Bunnings site, would achieve the same outcomes, so they are not particularly significant given the high degree of conflict identified.

[141] When balancing this evidence of significant need against the stated conflict, there are a number of provisions in the Strategic Plan which, when read as part of the whole, are very significant. I need only refer to some of the Strategic Aims, which repeat and reinforce other provisions including some dealing with the relevant zones. When considering these Strategic Aims, the decision maker is obliged to keep in mind that when considering the consistency of any development against objectives (for example for industry in 19.5.1), the Plan states that the requirements of the Strategic Vision, Principles, Development Principles and Strategic Aims will prevail. S. 27.2.3.1 recognises that "a significant proportion of the higher order needs of the shire's population is fulfilled by retail developments located in other regions, particularly the key regional centre of Maroochydore...".

[142] Although I accept that Bunnings does not predominantly trade in higher order goods such as comparative goods, and does not seek to compete in the premium range of many of its products eg. Tiles, in accordance with Mr Duncan's evidence, it is clear to me that there is support in these Aims for the need for the vast range available at a Bunnings of this size be met from outside the Shire. Although I have found insufficient evidence to establish a threat to the viability of the SBC, particularly Stage 1, nevertheless the establishment of a huge predominantly retail outlet outside the SBC cuts across a well articulated strategy in the Plan. S. 27.5.3.1 dealing with Strategic Industry Aims, confirms the clear strategy of recognising that needs of the Shire for access to "higher order uses" can be met from outside the shire. In s. 24.1 in the Strategic Vision there is again reference to the proximity of the Shires to other centres with "higher order services".

[143] It follows that Bunnings have not satisfied me that there are planning grounds, particularly need, sufficient to overcome the identified conflict with the Strategic Plan, and its appeal therefore must fail.