Yu Feng P/L v Maroochy Shire Council & ors [1996] QCA 226

Yu Feng P/L v Maroochy Shire Council & ors [1996] QCA 226 - QCA 1996 case summary — Zoe

[75]

The regional centre has a core which is said to be centred on established commercial development around the Ocean Street-Horton Parade intersection. By necessary implication the regional centre extends beyond the core. Higher order retailing, including national department stores, are encouraged under the plan to establish in the core area. Government offices, office buildings, commercial support services and public transport interchanges are also encouraged to establish in the core area. It is intended that the core area should remain compact to enable patrons to walk between its component parts and that there be pedestrian access between retail and commercial facilities. Retail warehousing and other retail and commercial development requiring large display areas and tending to reply on accessibility by private transport on the other hand are encouraged to establish at the periphery of the centre. This must I think be understood in the sense that the periphery of the centre will be some distance from the periphery of the core. The development proposed in this case is a development of a stand-alone shopping complex comprising a major supermarket, a discount department store, a mini-major department store and a range of specialty shops with provision for ground level parking. It seems to me to be tolerably clear that such a development is one which requires large display areas, in so far as it includes a major supermarket and a discount department store and it certainly is a development of the sort which tends to rely upon accessibility by private transport. It seems to me to follow that Maroochydore Marketplace, if it were to be established as part of the regional centre, should be established at the periphery of that centre. I consider that the reference to `higher order retailing including national department stores' is not intended to include a development which is based on a major supermarket and a discount department store. I would think that the expression in its context is a reference to speciality shops and a major department store or stores where high level comparison shopping tends to be carried out. No doubt comparison shopping would occur at an establishment such as Maroochydore Marketplace, but in my view it would be of a lower order and would not properly be characterised as `higher order retailing', as that expression is used with reference to the Regional Centre. ...

[82]

"The draft strategic plan will have a life of some 7 to 10 years and may take into account in its planning a longer time period up to, say, 20 years. The Shire and the Sunshine Coast in general is experiencing considerable growth and the Council expects that growth to continue throughout the life of the draft strategic plan. Whatever point may be thought to mark the periphery of the regional centre at the moment, such as the edge of commercial development surrounding the core, it is highly likely that that periphery will move outwards during the life of the draft plan. If development occurred at the present periphery of the regional centre then the likelihood is that within a few years that development would find itself within, and not at, the periphery of the regional centre, and the intentions and objectives of the Council in that respect would be frustrated. In considering what is intended by the term `periphery' in this context, it seems to me to be essential to take a forward view and to consider not what the periphery might presently be thought to be, but where it may reasonably be thought to be within the next (say) 10 years. Planning for the benefit of the public, if it is thought to require that some uses be established at the periphery of an area, requires that the matter be looked at in a reasonably long term timeframe. The regional centre is now to become the business, government and administrative centre of the Shire, and no doubt of the Sunshine Coast generally. Under the strategic plan Nambour was to be the government and administration centre whereas it has now been relegated to the status of the sub-regional centre, incorporating the `rural oriented sections of government and private enterprise'. Further additions to the regional centre over the next 10 years are likely to include the Shire Council offices, Telecom offices, Department of Transport offices, a Civic complex, more retail development and office development, a rail link, and in the frame area, roadworks and a university.

[92]

The appellants contend that Maroochydore Marketplace does primarily satisfy day to day and convenience shopping of the immediate local community but that it does also, partly because of its accessibility on a major arterial road, and partly because of the presence of the discount department store and specialty shops, serve the needs of a larger indiscrete residential area and the convenience needs of passing motorists. The proposal does of course include a major supermarket and a discount department store, and the reference to those matters must be to district centres generally and not merely to Coolum. The combination of a major supermarket and a discount department store with or without specialty shops does not in itself constitute a district centre or a sub-regional centre. It may constitute a district centre for the purposes of the draft strategic plan but its catchment may be such that it is more appropriately regarded as sub-regional. In those circumstances such a facility should be located, in my view, in the sub-regional centre (Nambour) and not at a district centre, or itself comprise a new district centre. The size of Maroochydore Marketplace and its composition is such that it has a tertiary north catchment extending up to Noosa and a tertiary west catchment extending west of Nambour. It appears to me that the expression `unsatisfied demand' in para. 17 of the implementation criteria can be better understood in terms of the discussion under the `Retail and Commercial Strategy' heading, where the reference is to satisfying the day to day shopping and commercial needs of surrounding but indiscrete residential areas. it seems to me that what is contemplated is demand which can be so described and that the expression `surrounding but indiscrete residential areas' is not intended to encompass more than an area such as the primary catchment area in this case. In my view the proposed Maroochydore Marketplace would satisfy a demand much greater than that envisaged in the case of a district centre and even though it may at the same time cater for unsatisfied demand in that sense, it exceeds that function to such an extent as to disqualify it in my view from categorisation as a district centre. In addition to that, I consider that unless the proposed facility can properly be viewed as a part of the regional centre then its presence so close to the regional centre, viewed against the retail hierarchy outlined in the draft strategic plan cannot be regarded as a systematic development of a particular area. It is development, in those circumstances, which is contrary to the structure of the retail hierarchy which the draft strategic plan supports and promotes.

[96]

In this case there is conflict between the proposal and the strategic plan, although not with the draft strategic plan. Pursuant to section 4.4(5A) of the Act the application must be refused if it conflicts with the strategic plan and there are not sufficient planning grounds to justify approving the application despite the conflict. The strategic plan in this case is towards the end of its life, whereas the draft strategic plan is well along the path to gazettal and may within a short time be the new strategic plan for the Maroochy Shire. The draft strategic plan identified major commercial centres within the Shire and contemplated a hierarchy of such centres but did not establish such a hierarchy. That was something for the future, and it has been done in the draft strategic plan. The concept of a retail hierarchy on the Sunshine Coast is central to the determination of this appeal and it is something with which the strategic plan does not deal. Quite apart from the strategic plan, in a general planning sense it is necessary to approach the issues in this appeal against the background of an actual or proposed hierarchy of retail centres. This is so whether or not the ultimate decision is to approve the application or to reject it. Nor does the strategic plan consider, in any detail, the evolution of the major centres. Expressions such as `core' and `periphery' are not to be found in the terminology of the strategic plan and there is no indication of the desirability of differing locational requirements for different developments within or in relation to the centres. In this case planning considerations in general and as incorporated in the draft strategic plan have persuaded me that the application ought to be approved. Mr. Deane, the then town planner for the respondent, considered that the development at the location proposed was unlikely to upset the regional status of Maroochydore, and that the proposed complex would work with the core area in establishing a greater regional catchment due to the range of shops available.

[116]

Finally, the "periphery" adopted by the Planning and Environment Court in order to accommodate the "Maroochydore Marketplace" application was entirely speculative. The Court could say no more than that, although outside both the current Maroochydore Central Business District (the "core") and the Maroochydore Regional Centre (the "frame") and separated from them by the Maroochydore Primary School, "it is not unlikely that retail and commercial development will extend in a generally westerly direction towards the site of the development in the next 5 to 10 years. In my opinion it is as likely that development will occur in this direction as in any other, and in fact the evidence discloses commercial development in that direction. It makes in my view little difference to the question, but it may be that that development will include the land presently occupied by the primary school. Even if it does not, educational establishments are a consent use in both the Central Business and Commercial zones. The development of Plaza Parade and the Evans Street link which borders on the subject land and links up with Duporth Avenue provides, in my view, some encouragement for expansion of the regional centre in that direction." At another point, the Planning and Environment Court made the general observation, which adds little for present purposes, that Maroochy Shire "is experiencing considerable growth and the Council expects that growth to continue throughout the life of the draft strategic plan. Whatever point may be thought to mark the periphery of the regional centre at the moment, such as the edge of commercial development surrounding the core, it is highly likely that that periphery will move outwards during the life of the draft plan. If development occurred at the present periphery of the regional centre then the likelihood is that within a few years that development would find itself within, and not at, the periphery of the regional centre, and the intentions and objectives of the Council in that respect would be frustrated. In considering what is intended by the term `periphery' in this context, it seems to me to be essential to take a forward view and to consider not what the periphery might presently be thought to be, but where it may reasonably be thought to be within the next (say) 10 years. Planning for the benefit of the public, if it is thought to require that some uses be established at the periphery of an area, requires that the matter be looked at in a reasonably long term timeframe." One obvious problem with this reasoning is that it provides an argument against approval of "Maroochydore Marketplace" unless the "periphery" of the Maroochydore Regional Centre extends during the "life" of the Draft Strategic Plan to, or almost to, the "Maroochydore Marketplace" site but no further.

[161]

The broad test which is sometimes expressed is that, while the meaning of an ordinary English word which is used in its ordinary and not some technical, commercial, trade or other special (for example defined) sense in a statute or document having legal effect is a question of fact, the construction of the statute or document (or the material part of the statute or document), i.e., the ascertainment of its legal effect, is a question of law: see, for example, Life Insurance Co. of Australia Ltd. v. Phillips [1925] HCA 18; (1925) 36 CLR 60 at 78 per Isaacs J.; Australian Gas Light Co. v. Valuer-General [1940] NSWStRp 9; (1940) 40 SR(NSW) 126 at 137 per Jordan CJ; Neal v. Secretary, Department of Transport [1980] FCA 45; (1980) 29 ALR 350 at 361-362; Collector of Customs v. Pozzolanic Enterprises Pty. Ltd. [1993] FCA 456; (1993) 115 ALR 1. However, the cases show that the distinction for which that test provides cannot always provide a solution and, even when it can, is often difficult to apply in practice. For example, if a statute uses words "according to their common understanding, the question ... whether the facts as found fall within these words", is one of fact, not law: Hope v. Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7, per Mason J, citing Brutus v. Cozens [1972] UKHL 6; [1973] AC 854. Hope also accepts, at p. 8, citing New South Wales Associated Blue-Metal Quarries Ltd. v. FCT [1956] HCA 80; (1956) 94 CLR 509 at 512, that the "common understanding of ... words ... is a question of fact." However, it is a question of law when words used in a statute (and, by implication, any other document having legal effect) are used "in any other sense than that which they have in ordinary speech": Hope at p. 8, citing Associated Blue-Metal Quarries at pp. 511-512. Importantly, the proposition for which Brutus is cited in Hope only applies if the conclusion that the "facts fall within [the] words" is available on the evidence; it is a question of law "whether the material before the court reasonably admits of different conclusions" with respect to whether or not the statutory provision (or other provision having legal effect) is met: Hope, again at p. 8 citing Associated Blue-Metal Quarries at p. 512. A conclusion that such a provision is met without evidence which "reasonably admits of" that conclusion is consequently a mistake or error in law: cf Azzopardi v. Tasman UEB Industries Ltd. (1985) 4 NSWLR 139; Harrower v. Craig [1992] NTSC 127; (1992) 109 FLR 80; Luu v. Renevier [1989] FCA 518; (1989) 91 ALR 39 at 47; Minister for Immigration and Ethnic Affairs v. Teo (1995) 57 FCR 194, 199ff; Re McIntyre; Ex parte Community and Public Sector Union (1995) 131 ALR 689 at 703ff; Lim v. Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Full Court, NG 919/94, unreported judgment 8 August 1995); cf Mahon v. Air New Zealand (1984) AC 808 at 820-821.

[181]

The question thus posed was not, I think, explicitly answered in any later part of the reasons. But his Honour made observations which bear upon the problem of whether the new complex would "support and develop" the existing facilities. He held that the new complex would not be appropriately situated "where it is proposed to be situated if it is to be seen as a subregional centre in its own right". His Honour also said that "viewed as a centre distinct from, and therefore competing with the Maroochydore Town Centre, its development on the site proposed would be [unacceptable] . . . in that its effect would be to fragment the town centre rather than to consolidate it, and good planning principles seem to me to require that the regional centre be consolidated rather than fragmented. If therefore Maroochydore Marketplace is to be regarded as a centre in its own right and not as part of a larger centre I do not think its development is justified . . . " (emphasis added). Since the judge held that the proposal should be accepted, he must have decided this issue in favour of Elfband and Vanhoff. By implication, although not expressly, his Honour here advanced the view that the purpose he identified in the draft strategic plan, namely "to support and develop" the existing facility, was fulfilled if the new complex was not to be one "distinct from" but rather "part of" what existed. Putting this in simpler language, in this part of his reasons the judge seems to have held that the new complex would become part of the existing shopping facilities and would in that sense consolidate them. Elsewhere in his Honour's reasons, one finds the same idea: " . . . unless the proposed facility can properly be viewed as part of the regional centre then its presence so close to the regional centre . . . cannot be regarded as a systematic development . . . It is development . . . which is contrary to the structure of the retail hierarchy which the draft strategic plan supports and promotes" (emphasis added).

At a glance

Court

Decision date

Before

Source

Judgment (232 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (20)