In brief

The case of Bunnings Group Limited v Sunshine Coast Regional Council & Ors [2019] QCA 252 concerned two applications for leave, brought under section 63 of the Planning and Environment Court Act 2016 (P&E Court Act), to appeal to the Court of Appeal of the Supreme Court of Queensland (Court of Appeal) against the decision of the Planning and Environment Court (P&E Court) to dismiss the appeal by Bunnings Group Limited (Bunnings) against the decision of the Sunshine Coast Regional Council to refuse to issue a development permit for a material change of use of premises to establish a Bunnings Warehouse at Coolum. 

The proceedings in the P&E Court commenced before the commencement of the Planning Act 2016, and therefore the now repealed Sustainable Planning Act 2009 (SPA) applied. 

The P&E Court held that each development proposed by Bunnings was in conflict with the now superseded Maroochy Plan 2000 (Planning Scheme), and that there were, under section 326(1)(b) of the SPA, insufficient grounds to justify an approval of either development proposal, notwithstanding the conflicts with the Planning Scheme. 

In its application, Bunnings argued that leave ought to be granted because of the following errors of law by the primary Judge in Bunnings Group Ltd v Sunshine Coast Regional Council & Ors [2018] QPEC 42 (P&E Court Decision): 

  • the primary Judge erred in misconstruing parts of the Planning Scheme; 

  • the primary Judge erred by misstating some matters of principle; 

  • that the reasons for judgment were insufficient and in some ways, inconsistent. 

2007 litigation 

The Court of Appeal observed that the P&E Court had previously considered whether the subject site ought to be approved for a development permit for a material change of use to a Bunnings Warehouse in the case of Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QPEC 13 (Coolum Properties).

In Coolum Properties, the P&E Court considered the same provisions of the Planning Scheme as in the P&E Court Decision and determined that a Bunnings Warehouse of 5,815 square metres was in conflict with the Planning Scheme, and that there were insufficient grounds to overcome the conflict and allow an approval notwithstanding the conflict. 

The Court of Appeal noted that the decision in Coolum Properties was sought to be appealed by an application for leave, which application the Court of Appeal also refused in the case of Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2007] QCA 351 (2007 CoA Case).

Facts and circumstances of the development sought 

The development permit applied for by Bunnings sought approval of a material change of use of the subject site to a Bunnings Warehouse with a gross floor area (GFA) of 8,600 square metres, and in the alternative a Bunnings Warehouse with a GFA of 5,850 square metres. 

The subject site was designated urban in the Strategic Plan and located within the Master Planned Community (Precinct 7) (Precinct 7) in Planning Area 11 (Coolum Beach) (Planning Area 11). Planning Area 11 was described as being intended to be (at [15]): 

"an attractive coastal village, with a growing number of boutique eateries, shops and tourist facilities...a compact village centre and…provide only a limited range of goods and services to meet the immediate needs of residents and visitors to the locality". 

P& E Court's finding of conflict with the Planning Scheme 

In the P&E Court, Bunnings argued that the appeal ought to be allowed and the development permit granted on the following grounds: 

  • the proposed developments were of a type appropriate for the Precinct and of a lesser scale than the proposed development in Coolum Properties

  • another approval in the area, namely an approval for a supermarket, meant that the provisions of the Planning Scheme had been overtaken by subsequent events; 

  • there was a need for the proposed development; 

  • the development would result in beneficial traffic outcomes as a result of the upgrade of the surrounding roads and would benefit the community without an unacceptable impact. 

The Court of Appeal noted the P&E Court's reasons for dismissal of the appeal as follows: 

  • the Planning Scheme intended that the Coolum area remain a small scale centre and the subject site was not located within a Planning Area, namely the area north of Beach Road, south of Margaret Street and east of Sunshine Street and at the western end of Yandinda-Coolum Road, which permitted commercial and business activities, or industrial activities; 

  • the proposed changes of use were not preferred and accepted uses under the Planning Scheme because a Bunnings Warehouse was held not to be a retail sale of goods primarily of a bulky nature and therefore did not fall within the definition of a showroom, which was a preferred and accepted use under the Planning Scheme; 

  • even if the proposed developments were within the definition of a showroom, a Bunnings Warehouse would not only compete with goods and services in the area as permitted in the Planning Scheme, but would lead to the closure of a Mitre 10 store within the Precinct; 

  • although there was a likely demand for the development, there was not a strong level of planning need as two Bunnings Warehouses existed within 15–20 minutes of the subject site; 

  • the beneficial outcome of the upgrade of surrounding roads did not justify the extreme conflicts with the Planning Scheme and there were unacceptable impacts, including that the proposed development was in conflict with the retail hierarchy of the Planning Scheme, as was also found in Coolum Properties.

Court of Appeal's refusal to grant leave

For the leave of the Court of Appeal to be granted, section 63 of the P&E Court Act requires the Court of Appeal to be satisfied that the P&E Court's decision was infected by an error or mistake of law or jurisdictional error. 

The Court of Appeal dismissed the applications for leave to appeal for the following reasons: 

  • there was no error in the primary Judge's interpretation and application of the Planning Scheme; 

  • the primary Judge's reasoning and consideration of the evidence was revealed in the judgment and there was no inconsistency in the reasoning of the primary judge; 

  • the primary Judge did not err in the application of matters of principle in that the Judge was entitled to take into account, and could hardly have ignored, the previous decisions of the P&E Court and the Court of Appeal in Coolum Properties and the 2007 CoA Case

  • whether the primary Judge ought to have considered that Planning Area 11 had been overtaken by events was a question of fact. 

Conclusion

The Court of Appeal concluded that there was no error of law in respect of the primary Judge's decision that the proposed scale, intensity and function of the proposed development, inconsistency with the intended retail hierarchy of the Planning Scheme, likely impact on existing centres and traders, and the absence of master planning for the site warranted a dismissal of the planning appeal and refused the applications for leave to appeal against the decision of the P&E Court with costs. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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