The case of Kelly Consolidated Pty Ltd v Ipswich City Council & Anor [2024] QPEC 12 concerned a submitter appeal by Kelly Consolidated Pty Ltd (Submitter) to the Planning and Environment Court of Queensland (Court) against the decision of the Ipswich City Council (Council) to approve an impact assessable development application (Development Application) for a development permit for a material change of use for a bulky goods sales complex and a development permit for operational works for advertising devices (Proposed Development) in respect of land at Yamanto, Ipswich (Subject Land).

The Court considered whether the Proposed Development is a land use that is explicitly supported by the Ipswich Planning Scheme 2006 (version 03/2017) (Planning Scheme), whether there is a need for the proposed development, whether the proposed development is consistent with relevant assessment benchmarks in the Planning Scheme, and relevant matters relied on by the parties under section 45(5)(b) of the Planning Act 2016 (Qld) (Planning Act) (at [23]).

The Court allowed the appeal, set aside the Council's decision to approve that part of the Development Application in respect of the development permit for a material change of use, and replaced it with a decision to refuse that part of the Development Application (at [277]).

The Subject Land, an 18.33-hectare vacant parcel of land comprising 140 lots, is located 100 metres from land designated by the Planning Scheme as the Yamanto Major Centre, which comprises a mix of retail, commercial, and community uses (see [1] to [5] and [8]). The Planning Scheme designates the Subject Land as being in Sub Area LB6 - Yamanto of the Local Business and Industry Zone, which is to support the intended business functions of the Yamanto Major Centre (at [8]). The Subject Land is also mapped as part of the Urban Areas locality on Strategic Framework Figure 1-1 (at [66]).

In July 2021, the Council approved the Development Application lodged by Yamanto Holdings Pty Ltd (Co-Respondent) in respect of the Subject Land subject to conditions (Development Approval) (see [9] and [11]). During the public notification of the Proposed Development the Submitter, which was granted a development permit for a material change of use for a shopping centre in the Yamanto Primary Business Area of the Yamanto Major Centre Zone in October 2022 (Yamanto Shopping Centre Approval), objected to the Development Application (see [6] and [10]).

The Submitter appealed against the Council's decision to grant the Development Approval, insofar as it approved a development permit for a material change of use of premises on part of the Subject Land and not in respect of the proposed operational works, on the basis that there is no need for the Proposed Development and that it does not comply with the provisions of the Planning Scheme pertaining to the proper functioning and support of the Yamanto Major Centre (at [12]).

The Court decided that, whilst it may fit the definition of "Shopping Centre" as contended by the Submitter, the Proposed Development more accurately falls within the definition of "Bulky Goods Sales" in the Planning Scheme (at [61]).

The Co-Respondent bore the onus of establishing that the appeal should be dismissed (at [15]).

The Submitter argued that the Proposed Development is inconsistent with the specific outcome for the Urban Areas as a whole in section 4.3.3(1)(a)(iii) of the Planning Scheme, the overall outcomes for the Local Business and Industry Zone in sections 4.11.2(2)(c) and (e) of the Planning Scheme, and the specific outcome for Sub Area LB6 - Yamanto in section 4.11.4(6)(g) of the Planning Scheme (Disputed Assessment Benchmarks) for the reasons that it constitutes an "out of centre" development, it would compromise the viability of higher order centres and the function of the Yamanto Major Centre, it does not support the Yamanto Major Centre, and it does not cater to the needs of just the local community (see [64] to [65]).

The Co-Respondent argued that the Disputed Assessment Benchmarks, when considered in conjunction with the Strategic Framework, the desired environmental outcomes, overall outcomes and specific outcomes for the Urban Areas as a whole, and overall outcomes and specific outcomes for the Local Business and Industry Zone, demonstrate that the Proposed Development is explicitly supported by the Planning Scheme (see [68] and [73]).

The Court observed that the specific outcome in section 4.11.4(6)(g) of the Planning Scheme contemplates the use of land in Sub Area LB6 - Yamanto for "bulky goods retailing" provided that it supports the intended business functions of the Yamanto Major Centre (see [95] to [100]). The Court stated that "…it is not determinative of this issue that the proposed development does not provide all the envisaged land uses" (at [103]).

The Court held that, whilst the Planning Scheme does not explicitly support the Proposed Development on the Subject Land, it does contemplate in certain circumstances use of the Subject Land for bulky goods retailing and whether there is support from the Planning Scheme is determined as a question of fact having regard to the parameters of the Proposed Development and the need for, and the economic impact of, the Proposed Development (at [104]).

In determining whether there is a need for, and an absence of adverse economic impact occasioned by, the Proposed Development, the Court had regard to expert evidence (at [114]).

Given the Court's doubts regarding the accuracy of the experts' opinions on what retail traders fit the definition of "bulky goods sales" - and therefore their respective quantitative assessments - the Court was uncertain about the extent of the demand for bulky goods sales uses (see [159] to [165]).

In considering the supply of retail facilities to address the demand, the Court did not accept the assumption made by the experts engaged by the Co-Respondent and the Council that the Yamanto Shopping Centre Approval will provide only 5,000 square metres of bulky goods sales retail uses (at [202]). For this reason, the Court was not prepared to accept their respective opinions that "…there is a high level of need for the proposed development…" and that "…there is a modest level of community, economic and planning need for the proposed development…" (see [203] to [207]).

In respect of the potential impact of the Proposed Development, the Court did not accept the opinion of the experts engaged by the Co-Respondent and the Council that the Proposed Development "…would not compromise or jeopardise the Yamanto Major Centre and other higher order centres or compromise or undermine the centres hierarchy" (at [209]). The Court preferred the evidence of the expert engaged by the Submitter that "…there is insufficient demand to support both the proposed development and the [Yamanto Shopping Centre Approval]" (see [210] and [212]).

Despite assuming that the Proposed Development would provide an additional choice of facilities, increased convenience and amenity for large format retail shopping, and the diversification of the economic base in the Yamanto area (at [214]), the Court was "…not satisfied that there is sufficient latent unsatisfied demand to ensure the success of both the proposed development and the [Yamanto Shopping Centre Approval]" (at [217]), especially in light of the uncertainty of the scale of the retail facility required to address the demand (at [216]).

In respect of the Disputed Assessment Benchmarks, the Court made the following conclusions:

• The specific outcome for the Urban Areas as a whole in section 4.3.3(1)(a)(iii) of the Planning Scheme provides that "[a] network of centres is established which…supports and provides for the distribution of neighbourhood centres and local shopping areas which mainly cater for convenience shopping and local services…" (see [70] and [221]). The Submitter alleged that the Proposed Development is an "out of centre development" that is not a suitable use in the Local Business and Industry Zone (at [222]). The Court held that, whilst the Proposed Development is not "…of a scale that will support the intended business functions of the Yamanto Major Centre…", this did not render it inconsistent with section 4.3.3(1)(a)(iii) of the Planning Scheme (at [224]).

• The overall outcome for the Local Business and Industry Zone in section 4.11.2(2)(c) of the Planning Scheme states that "[u]ses and works do not compromise or jeopardise the intended retail and service functions of the City Centre and designated Major or Neighbourhood Centres" (see [71] and [225]). The Court held that the Co-Respondent had not demonstrated that the Proposed Development would not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre (at [226]).

•  The overall outcome for the Local Business and Industry Zone in section 4.11.2(2)(e) of the Planning Scheme states that "[u]ses and works cater to the needs of the local community" (see [71] and [227]). The Submitter argued that the Proposed Development will serve an area wider than the "local community", and is therefore non-compliant (at [228]). The Court was not persuaded that the Proposed Development would cater to the needs of the local community because there is "…a degree of latent unsatisfied demand for large format retail uses…" which can be adequately met by the new Yamanto Shopping Centre Approval without a need for the Proposed Development (at [234]).

• The specific outcome for Sub Area LB6 - Yamanto in section 4.11.4(6)(g) of the Planning Scheme provides that "[t]he Sub Area supports the intended business functions of the Yamanto Major Centre by providing for…bulky goods retailing and retail warehouses…" (see [72] and [235]). The Submitter argued that non-compliance is demonstrated by the Co-Respondent's failure to establish a need for the Proposed Development, the evidence of its town planner who opined that the Proposed Development would compete with the planning aspirations of the Yamanto Major Centre, and the absence of any integration or connection between the Proposed Development and the Yamanto Major Centre (at [236]). The Court was not satisfied that the Proposed Development complied with the specific outcome in section 4.11.4(6)(g) of the Planning Scheme (see [239] and [240]).

In respect of the relevant matters relied upon by the Co-Respondent in support of approval under section 45(5)(b) of the Planning Act, the Court made the following conclusions:

• Appropriate and well-located in a planning sense – The Co-Respondent contended that the Proposed Development is appropriate and well-located in a planning sense (at [251]). The Court accepted that the Subject Land is identified as a preferred location for bulky goods retailing, but was not satisfied that the Subject Land is a preferred location for the Proposed Development, nor that it would not have an adverse impact on the Yamanto Shopping Centre Approval (see [252] to [255]).

• Social and economic benefits for the local community – The Court accepted the Co-Respondent's argument that the Proposed Development would present positive social and economic benefits to the local community by creating employment opportunities, encouraging the retention of spending within the Ipswich local government area, enhancing the amenities enjoyed by the community, and contributing to public art (see [257] to [259]).

• Good planning and community expectations – The Co-Respondent contended that the Proposed Development is consistent with good planning and the reasonable expectations of the community on the basis of its alleged compliance with the Planning Scheme (at [260]). The Court held that, contrary to the Planning Scheme, the Co-Respondent had not established that the Proposed Development would not compromise or jeopardise the intended retail and service functions of the Yamanto Major Centre (at [266]).

The Court held that it was not satisfied to the requisite standard that the Proposed Development on the Subject Land is explicitly supported by the Planning Scheme, that there is a demonstrated need for the Proposed Development, nor that it would not compromise the intended retail, service, and business functions of the Yamanto Major Centre (see [272] and [275]).

The Court allowed the appeal, set aside the Council's decision to approve the Development Application for a development permit for a material change of use, and replaced it with a decision to refuse that part of the Development Application that sought a development permit for a material change of use (at [277]).