The clear and significant need for a shopping complex, coupled with the unlikely prospect of that need being met other than in the increasingly congested Maroochydore Centre, justified approval of the development despite being in conflict with the Maroochy Plan 2000

by Ian Wright, Nadia Czachor, Jessica Day
30 November 2017

In brief

The case of Harvest Investment Co (No 2) Pty Ltd v Sunshine Coast Regional Council & Ors [2017] QPEC 61 concerned an appeal by the applicant for a development permit for a material change of use for a shopping complex against the decision of the Council to refuse the application on the basis that the proposed development at 141 Jones Road, Buderim was in serious conflict with the former Maroochy Plan 2000
 
In ultimately finding in favour of the Appellant, the Court considered the following:
 
  • whether the proposed development conflicted with the Maroochy Plan 2000; 
  • whether the proposed development resulted in unacceptable character and visual amenity impacts;
  • the clear economic and community need for the proposed development; and 
  • whether there were sufficient grounds to justify approval of the proposed development. 

The Court found significant conflict with the Maroochy Plan 2000

The planned hierarchy of centres in the Maroochy Plan 2000 demonstrated a clear intention that a shopping complex use only occur within district centres or higher order centres, however there was no relevant centre designation for the site of the proposed development. 
 
The Appellant submitted that the proposed development should be treated as the creation of a district centre to satisfy a demand and, as such, did not conflict with the Maroochy Plan 2000. However, this was not accepted as the site was not relevantly designated and the Court was not satisfied that approval would be akin to approving the creation of a district centre. 
 
Given that the proposed shopping complex was not a contemplated use within the relevant precinct, the proposed development was in significant conflict with the Maroochy Plan 2000

The Court found that unacceptable character and visual amenity impacts were minor, at best  

The parties’ experts agreed that the proposed development was "unlikely to generate adverse impacts on nearby residential visual amenity" and the scope of visual impact was limited because of the separation and screening of nearby residents from the site (at [36]). 
 
The Council argued that the proposed development fell short of complying with the provisions of the Maroochy Plan 2000 that required that developments "demonstrate street level design cohesion" and that it would fail to "present a generally continuous shopfront appearance." The Court rejected these arguments on the basis that the circumstances and topography of the site did not support the Council's claims. Further, the Court was persuaded by an existing development approval on the site that persisted despite similar constraints.  
 
The Court preferred the Appellant’s expert's evidence, finding that there was sufficient scope to satisfactorily landscape the proposed development and accordingly any conflict with the Maroochy Plan 2000 was inconsequential. 

The Court found that there was a clear economic and community need for the proposed development to service the current and future residents of the area 

The Appellant submitted that the unsatisfied demand created a planning need for the proposed development and overcame any conflict with the Maroochy Plan. In considering the concept of a "planning need" the Court cited the explanation given in Isgro v Gold Coast City Council & Anor [2003] QPELR 414 where the Court relevantly explained as follows:  
 
"[n]eed in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community... Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met” (see [21]). 
 
The Court considered the extent of the need and held that the evidence of the experts for both parties about the estimated population and growth forecast demonstrated a clear demand for the proposed development. 
 
The Council’s expert argued that the small nearby primary trade area would be significantly impacted by the proposed development. The Court held that this position was exaggerated and referred to the test in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979) 140 CLR 675 which relevantly states as follows:
 
"[h]owever the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration” (see [17]).
 
The Court was of the view that the small nearby primary trade area would persist and ultimately compete with the proposed development. 
 
The Court preferred the Appellant’s expert's evidence, being that there was a need for a full-line supermarket to serve the area and that the population level could clearly sustain the proposed development. The Court found that the shopping complex would satisfy the modern consumer's need for a "full range of goods available in convenient locations" (at [33]). 

The Court found that the planning grounds in favour of the proposed development were, on balance, sufficient to justify its approval  

Despite the conflict with the Maroochy Plan 2000, the Court was persuaded to approve the proposed development because the Council had previously departed from the planning intent of the Maroochy Plan 2000 because the contemplated "Town Centre Core" in the relevant precinct was in fact absent. Further, the Council had approved a number of developments, including a nearby development, that presented similar conflicts with the planning scheme. Lastly, the Court was satisfied that there was a significant need for the proposed development. 

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