Planning and Environment Court of Queensland refuses the development of a mixed-use marketplace after finding that the development failed to meet the "Noosa Style" and expectations of the community

In brief

The case of Noosa Spotlight Property 2 Pty Ltd v Noosa Shire Council [2021] QPEC 77 concerned an appeal to the Planning and Environment Court of Queensland (Court) by Noosa Spotlight Property 2 Pty Ltd (Applicant) against the decision of the Noosa Shire Council (Council) to refuse a development application for a material change of use not defined under the Noosa Plan 2006 (2006 Planning Scheme) or the Noosa Plan 2020 (2020 Planning Scheme).

The Applicant sought a development permit to facilitate the development of the land situated at 2-18 and 20 Hofmann Drive, Noosaville for an integrated mixed-use precinct called "Noosa Marketplace" (Subject Land) comprising offices, large format retail style showrooms with a gross floor area (GFA) totalling 8,225 m², small incubator tenancies, and other mixed uses comprising four buildings of varying scale and form (Proposed Development). The Applicant intended to open a Spotlight retail store in one of the showrooms and an Anaconda retail store in another showroom.

The Subject Land is in the Shire Business Centre Zone under the 2006 Planning Scheme. At the time of the appeal, the 2020 Planning Scheme had come into force, under which the Subject Land is in the Major Centre Zone.

The Council categorised the Proposed Development as being solely in the Applicant’s self-interest, and as a serious departure from both the 2006 Planning Scheme and the 2020 Planning Scheme. The Applicant argued that the Proposed Development satisfies an economic, community, and planning need. The Court considered the issues that were in dispute between the parties and reached the following conclusions:

• There is no economic, community, or planning need for the Proposed Development.

• The Proposed Development was not an appropriate use of the Subject Land under the 2006 Planning Scheme or the 2020 Planning Scheme.

• The built form, style, and layout of the Proposed Development did not meet the "Noosa style" under the 2006 Planning Scheme or the 2020 Planning Scheme.

Court finds that the Applicant has a need for the Proposed Development more so than the community

The Applicant argued that there is a planning, community, and economic need for the Proposed Development. The Council argued that the Proposed Development does not meet an appropriate level of need when judged from the point-of-view of the community and not the developer.

The Court considered the issues of planning, community, and economic need in turn.

Economic need

The Applicant argued that the Proposed Development would satisfy the economic need for large format retail showroom floorspace and for flexible business incubator tenancies.

The Applicant's arguments and the Court's decision with respect to the economic need for large format retail showroom floorspace were as follows:

• The Applicant's economic expert opined that an expectation to travel for goods and services should be exchanged for an increase in a broader range of facilities as the population within the catchment area grows. The Court rejected this opinion and held that projections on lifestyle changes is a matter for the relevant planning schemes and the Council, and "…does not justify a departure from that which is presently in effect" (at [91]). The Court further held that, from the perspective of the catchment population, "…the sprawling nature of the area…leads to an expectation that travel will be necessary to access certain goods and services" (at [88]).

• Both parties' economic experts agreed that there is a degree of undersupply of large format retail showroom floorspace, but to differing extents. The Court held that it was unnecessary to determine which economic expert's approach was to be preferred because the identified undersupply did not amount to an economic need that could justify the approval of the Proposed Development (at [83]). The Court held that there was not an economic need for the Proposed Development because the goods sold by the Applicant "are hardly the essentials of life" (at [90]) and residents in the local catchment are already reasonably well supplied with large format retail showroom floorspace.

With respect to the flexible business incubator tenancies, the Applicant argued that economic need was demonstrated because the Applicant proposed that portions of the 8,225 m² GFA be taken up by six other businesses, although Harris Scarfe was the only business to express an interest (see [93] and [97]). The Applicant's development manager argued that the other incubator tenancies would be used by new local businesses and start-ups.

The Council argued that there was no evidence as to how the balance of the GFA would be allocated for incubator tenancies and there is insufficient evidence of economic need.

The Court agreed with the Council and held that the Applicant's evidence only went to the intention of such tenancies and did not identify any need. The Court was not satisfied that the Applicant had sufficiently demonstrated a need for other tenancies and held that the Applicant failed to demonstrate an economic need for the total GFA.

Community need

The Applicant presented four arguments in support of community need for the Proposed Development. The Applicant's four arguments and the Court's considerations were as follows:

• The Applicant argued that the Proposed Development will offer improved choice, convenience, and competition to the community. The Court held that choice did not create a community need because the goods offered by the Applicant are not "essentials of life" and the goods were readily available within an appropriate travel distance proportionate to the spending habits of the community (at [125]). The Court further held that need is assessed from the perspective of the community and the Applicant's desire for the Proposed Development is not probative of community need by improved choice, convenience, and competition (see [130] and [131]).

• The Applicant argued that the Proposed Development will contribute to the destination lifestyle of the Noosa Shire Business Centre. The Court rejected this argument because the Applicant did not present any cogent evidence that this outcome could not be achieved by a development that was within the scope of the planning limitations for the Subject Land (at [139]).

• The third and fourth arguments related to eliminating the need for Noosa Shire residents to source the goods from outside the local government area, and that the Proposed Development would contribute to employment. The Court rejected both of these arguments since the only realised benefit would be to the Applicant and other business interests and there would be no realised benefit for the community (see [140] to [143]).

Planning need

Both parties' need experts opined that "[a]part from a portion of the subject site, there is no vacant land in the Noosaville business zoned area for substantial large format retail/showroom uses" (at [151]). The Applicant argued that this was evidence of a planning need for the Proposed Development and a planning need to maintain the land in the Shire Business Centre Zone for other uses.

The Court held that the 2006 Planning Scheme and 2020 Planning Scheme are a reflection of the needs of the community and relied on the case of Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [67] which relevantly states that "…It has been established beyond argument that a decision maker must take a Planning Scheme to be an expression of the public interest in terms of land use".

The Court agreed with the Council's argument that town planning need is assessed against the planning scheme in its current form, relying on the case of Williams McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33 at [170]. The Court therefore examined the 2020 Planning Scheme and found that Overall Outcome 6.4.1.2(3)(a)(ii) in the Major Centre Zone Code intends for "a substantial amount" of non-retailing employment opportunities in the Shire Business Centre Zone (at [173]).

Court finds that there is limited to no scope for the Proposed Development on the Subject Land 

The Applicant argued that the Proposed Development is consistent with the outcomes sought in the 2006 Planning Scheme and 2020 Planning Scheme for the Shire Business Centre Zone Code (at [155]). The Court held that the Proposed Development is not an appropriate land use for the Shire Business Centre Zone for the following reasons:

• The Court held that the Proposed Development is not an appropriate land use under the 2006 Planning Scheme. Overall Outcome 11.7.2(tt)(B) of the Noosaville Locality Code, must be read with Overall Outcomes 117 and 118 which allows for up to 7,000 m² GFA for a Retail Business Type 4 Showroom (at [191]). The Court held that there is no scope in the 2006 Planning Scheme for the Proposed Development since it does not include any showrooms as per the definition of the term in the 2006 Planning Scheme (see [195] to [196]).

• The Court also had regard to the 2020 Planning Scheme, and held that it afforded limited scope for showroom floorspace as defined (at [194]). Performance Outcome PO66 of the Major Centre Zone Code only permits 3,500 m² GFA of showroom floorspace, which is less than half of that of the Proposed Development. The Court gave considerable weight to the fact that the 2020 Planning Scheme has retained the importance of the Shire Business Centre Zone being an activity centre that is not exclusively retail (at [248]).

• As accepted by both parties' town planning experts, the Proposed Development is an undefined use and is therefore inconsistent with the 2006 Planning Scheme. Under the definitions of the 2020 Planning Scheme, an inconsistent use "is strongly inappropriate in the relevant zones because it is incompatible with other uses generally expected in that zone" (Inconsistent Use) (at [185]). The Court gave considerable weight to the 2020 Planning Scheme as it reflects the most recent planning revisions to the Shire Business Centre Zone and is evidence that the Council has made decisions with respect to the availability of retail floor space (at [248]).

Court held that the built form of the Proposed Development was not "Noosa Style"

The Applicant argued that the Proposed Development achieves the built form outcomes of the Noosaville Locality Code of the 2006 Planning Scheme and enhances existing vegetated areas. The issue for the Court was to assess the relationship between the built form and the vegetation and landscaping in Noosa as promoted by the relevant planning documents (at [202]).

The Court held that the visual amenity and built form of the Proposed Development are not acceptable under the provisions of both the 2006 Planning Scheme and 2020 Planning Scheme. The Court's reasons were as follows:

• The Court agreed with the Council that a "Noosa Style" is recognisable in both the 2006 Planning Scheme and 2020 Planning Scheme. "[T]he Noosa Style is a broad concept that requires a design approach that generally responds to Noosa’s subtropical environment, lifestyle and regional vernacular; appreciating building typology and complementing the general surrounds" (at [211]). The Court agreed with the opinions of the Council's visual amenity and landscape expert that the Proposed Development overall cannot be categorised as a "Noosa Style" (see [214] to [224]).

• The Proposed Development did not have a high quality landscape design because it failed to reduce the visual impact of the development and did not comply with the identified provisions of the Landscaping Code in the 2006 Planning Scheme (at [232]).

Court finds limited relevant matters support approval

The Applicant argued that other relevant matters support the approval of the Proposed Development, being that it will not disrupt the Shire Business Centre strategy under the 2020 Planning Scheme, it will preserve industrial zoned land for industrial uses, and it can be carried out without any unacceptable impacts. 

The Court held that the Proposed Development will disrupt the Shire Business Centre strategy because the 2006 Planning Scheme expressly discourages undefined uses under Overall Outcome 90 of the Noosaville Locality Code (see [181] and [184]) and when it is read as a whole (at [264]). An undefined use is also considered an Inconsistent Use under the 2020 Planning Scheme (see [185] and [264]).

The Court was not satisfied that the Proposed Development would assist in preserving industrial land and even if it was satisfied the Court held that was not a relevant matter which alone would support approval (at [262]).

The Court also held that the Proposed Development does result in an unacceptable impact, being that the Proposed Development puts the Subject Land to a use which is not encouraged and displaces the opportunity in the future for planned and encouraged uses (at [265]).

Conclusion

The appeal was dismissed and the Court confirmed the Council's decision to refuse the development application.