In brief 

The case of Bunnings Group Ltd v Sunshine Coast Regional Council & Ors [2018] QPEC 042 concerned two appeals to the Planning and Environment Court against the decisions of the Sunshine Coast Regional Council (Council) to refuse two development applications in respect of a proposed Bunnings Warehouse on a site in Western Coolum. The proposed site is bounded by the Sunshine Motorway to the west and the Yandina-Coolum Road to the south. The first development application was for a material change of use of premises for a Bunnings Warehouse, having a gross floor area of 8,600m2. The second development application was for a material change of use of premises for a Bunnings Warehouse, having a gross floor area of 5,850m2.

The development applications were made under the Maroochy Plan 2000 (Superseded Planning Scheme), and the Sustainable Planning Act 1997 (Qld) (SPA) applied because the appeals were commenced before the commencement of the Planning Act 2016 (Qld).

The Court considered the following issues in the appeals:

  • whether the development applications were in conflict with the Superseded Planning Scheme;
  • whether the development applications would negatively impact visual amenity;
  • whether the development applications caused unacceptable traffic impacts; and
  • whether there were any sufficient grounds, in particular a planning need, to justify approval of the development applications, notwithstanding any conflict with the Superseded Planning Scheme.

The Court held that the development applications were in serious conflict with the Superseded Planning Scheme and that, on balance, there were no sufficient grounds to justify approval despite the conflicts. 

Court held that the development applications were in serious conflict with the Superseded Planning Scheme

The Court was required to consider if the proposed Bunnings Warehouse relevantly conflicted with the following provisions of the Superseded Planning Scheme:

  • Section 3.11.1 to 3.11.3, which requires that development applications must be consistent with the scale, intensity and function of the Coolum Beach's Village Centre designation in the Strategic Plan;
  • Section 3.4.1, which requires that development applications must be consistent with the retail hierarchy;
  • Section 3.11.4, which requires that development applications should not compete with the goods and services currently sold in the Coolum Village Centre Precinct;
  • Section 3.11.4, which requires that a master plan or another development plan is required if the Coolum West Gateway Precinct was to be redeveloped;
  • Section 3.11.4, which requires that provision should be made for an entry statement introducing motorists to the Coolum Beach township.

The Court noted that the correct way to construct the Superseded Planning Scheme was by reference to the language of the planning instrument as a whole, relying on the legal principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]-[70].

Under the Superseded Planning Scheme, the proposed site was located in part of the Coolum Beach Planning Area in the Coolum West Gateway Precinct, which provides an important entry to the Coolum Beach Township. 

The Court noted that the designation of the site as urban under the Superseded Planning Scheme demonstrates an intention that retail activities serve the day-to-day needs of the community. Moreover, the Retail and Commercial Centres Hierarchy describes the Coolum Beach Township as a Tourist Centre and a Village Centre designated to provide a limited range of goods and services to satisfy the needs of tourists and the town. The Court held that the development applications were in conflict with the Superseded Planning Scheme because they were for a standalone outlet that would serve a higher order function outside the contemplation of the Superseded Planning Scheme and the retail hierarchy. The Court's finding that Coolum should remain a small village centre was reinforced by its determination that the Superseded Planning Scheme’s Vision Statement intended for the Coolum Beach Planning Area to be a Village Centre.

The Court noted some tension within the Superseded Planning Scheme. This was because the Superseded Planning Scheme defines the Coolum Beach Planning Area as a Village Centre that should not serve a higher retail function. However, the West Coolum Gateway Precinct provides an exception for "showrooms" to provide large-scale and bulk goods and services. Therefore, the exception resolved any tension. However, the Court did not accept that the goods to be sold at the proposed Bunnings Warehouse would primarily be bulky items. Thus, the proposed Bunnings Warehouse did not constitute a showroom and was an unacceptable use of the site. 

The Court also accepted that the proposed Bunnings Warehouse in the Coolum West Gateway Precinct would compete with a Mitre 10 store currently in Coolum Village Centre Precinct. The Court accepted evidence that the proposed Bunnings Warehouse would cause the closure of the Mitre 10 store. The Court held that the fact that the proposed Bunnings Warehouse would compensate for the loss of the Mitre 10 store did not resolve the conflict with the Superseded Planning Scheme to not compete with existing retailers. 

The Court noted that under the Superseded Planning Scheme, the Council considers the Coolum West Gateway Precinct as a Master Planned Community. Therefore, the Appellant’s failure to conduct any master planning was a conflict with the Superseded Planning Scheme. 

The Superseded Planning Scheme intends that a provision should be made in the Coolum West Gateway Precinct for an "entry statement" to the Coolum Beach Township. The Court considered the appropriateness of the proposed Bunnings Warehouse as an "entry statement" to the Coolum Township. The Court determined that the requirement for an "entry statement" was already addressed by a sign in a landscape setting adjacent to the Yandina-Coolum Road. 

The Court, therefore, determined that the development applications were in serious conflict with the Superseded Planning Scheme. 

Court concluded that the development applications would not negatively impact visual amenity

The Superseded Planning Scheme requires that the visual amenity for motorists along the Sunshine Coast Motorway should include diverse landscapes, that buildings should be set within well landscaped grounds, and that car parks be located behind the buildings so as not to be visible from the Sunshine Coast Motorway or the Coolum-Yandina Road. The Court accepted evidence that the visual amenity impacts of the proposed Bunnings Warehouse could be treated by planting suitable vegetation. Except for glimpses of the built form and signage, this would screen the building from the view of motorists within eight years. Therefore, neither of the development applications were held to negatively impact visual amenity. 

Court determined that the development applications would not cause unacceptable traffic impacts

The Court accepted evidence of two traffic engineers that the proposed Bunnings Warehouse would not cause unacceptable traffic impacts. Moreover, the Court found that any traffic impacts could be resolved by the introduction of traffic signals to accommodate the additional traffic on the site from 2020 to 2030. 

Court held that there were no sufficient grounds to justify approval of the development applications, notwithstanding the conflicts with the Superseded Planning Scheme

The Court was required to consider whether there were any “grounds” to justify the development applications, notwithstanding the conflicts with the Superseded Planning Scheme under section 326(1)(b) of SPA. Schedule 3 of SPA relevantly provides that “grounds” are matters of public interest that do not include the personal circumstances of an applicant, owners or interested parties. 

The Court applied the three stage test from Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial trust) [2012] QCA 370, which requires the Court to examine the nature and extent of the conflicts, determine whether there are any grounds 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, and to determine whether the grounds in favour of the application as a whole are sufficient to justify approving the development application, notwithstanding the conflict. 

The Court also applied Bell v Brisbane City Council & Ors [2018] QCA 84 in which it was stated that planning schemes should be read as a comprehensive expression of the public interest and that the Court should only depart from a planning scheme where there is a tension between the public interest and the planning scheme and there are sufficient grounds in the public interest to justify approval of the development application, notwithstanding the conflict. 

The Appellant argued that the development applications should be approved on the following grounds:

  • the development applications were materially similar to other developments in Coolum;
  • the relevant provisions of the Superseded Planning Scheme were taken over by events;
  • there is a planning need for the development applications;
  • the development applications will result in beneficial traffic outcomes; 
  • the development applications will provide a community benefit without an unacceptable impact.

The Court found that the Appellant's grounds were, on balance, insufficient to justify approving the development applications, notwithstanding the serious conflicts with the Superseded Planning Scheme. 

In particular, the Appellant argued that there was a planning need for the proposed Bunnings Warehouse. The Court applied the two limb test from Isgro v Gold Coast City Council & Anor [2003] QPELR 414, which relevantly requires that there be a likely demand for the proposed Bunnings Warehouse and that the proposed Bunnings Warehouse will satisfy the latent unsatisfied demand. 

The Court accepted evidence of the Appellant’s retail economist that there was a demand amongst local residents for the proposed Bunnings Warehouse. However, the Court concluded that there was no planning need because there was no latent unsatisfied demand currently unmet by another Bunnings Warehouse. The Court held that a 15 to 20 minute drive to the Bunnings Warehouses in Maroochydore or Noosaville was reasonable for this type of retail facility. Therefore, the Court held that there was no planning need to justify approval of the development applications.

Conclusion

The Court described the proposed Bunnings Warehouse as opportunistic and attempting to place a large stand-alone Burnings Warehouse in a location where no such use was intended. The Court, therefore, dismissed the appeals. 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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