On 17 August 2011 the ACT Planning Minister used his call-in powers to approve the contentious redevelopment of the Giralang local shopping centre. The spokeman for the 40 or so independent supermarket operators comprising the Independent Retailers Group has issued a veiled threat to take the decision to the Supreme Court (reported in The Canberra Times 29 August 2011).
Criteria 33 in the current Territory Plan requires a development application to take regard of significant impacts on other commercially viable local centres.
The Canberra Times Monday 29 August 2011
Giralang shop size stoush may go to court
By Graham Downie
Planning Minister Simon Corbell’s approval of the redevelopment of the Giralang shopping centre would be challenged in the Supreme Court if he did not limit the size of the proposed supermarket, spokesmen for the Independent Retailers Group Chris Haridemos said yesterday.
After seven years and four development applications, Mr Corbell recently used his call-in powers to approve a redevelopment of the shopping centre.
Mr Haridemos said the decision had ignored requirements of the Territory Plan by effectively turning Giralang into a group centre. If this were not challenged, the viability of supermarkets at Kaleen, Evatt, Spence and McKellar would be threatened. Canberra’s 40 or so independent supermarket operators had agreed to mount a Supreme Court challenge if Mr Corbell refused to limit the floor space of a supermarket at Giralang to l500sqm, including all ancillary and storage space and the proposed liquor outlet.
The plans approved by Mr Corbell had provided for about 2500sqm for the supermarket. The approved plans had not included the storage and back-of- house facility in accordance with the Territory Plan’s definition of gross floor area. The site’s total storage area was 2470sqm, making it bigger than the supermarket.
A spokeswoman for Mr Corbell said yesterday the approval was consistent with the relevant provisions of the Territory Plan. The gross floor area of the proposed supermarket was limited to l500sqm. Storage for the entire centre was only 117sqm. Who held the tenancy of shops was not a relevant consideration for the planning process as long as the use was consistent with the Territory Plan.
Mr Haridemos said if Mr Corbell refused to negotiate, the supplier of IGA supermarkets, Metcash, would be asked to help with the legal challenge. “If we can’t get a change we will mount a Supreme Court challenge.” Mr Haridemos said there had been no economic analysis or a change of use evaluation with the approval. Both were required under the Land Act. “Our legal advice says there is a change of use.”
Mr Haridemos, who owns the IGA supermarket in the neighbouring suburb of Kaleen, said he had never opposed a local Giralang supermarket. But the minister’s call-in of this application and approval of this size retail spelled the end of local shops in Canberra. The Territory Plan had a retail hierarchy of local shops, group centres and town centres which restricted the size of supermarkets in local centres.
“One signature has invited chaos and madness into Canberra,” Mr Haridemos said. He said the proposed Giralang local centre supermarket site was far bigger than the Calwell, Hawker, Wanniassa and Curtin group centres and twice the size of Kaleen.
The plans approved by Mr Corbell include four specialty shops at Giralang, a cafe, a restaurant, 100 underground car-parking spaces and more than 70 surface car- parking spaces. Mr Corbell said he had used his call-in powers to resolve a seven- year planning impasse. The proposal had attracted strong support and strong opposition. The uncertainty had to be brought to an end.
Mr Haridemos said that by his actions, Mr Corbell had invited the big two supermarket operators to pick and choose any local shopping centre of strategic value.
Lawyer for the site owners Chris Wheeler, of Mallesons Stephen Jaques, said complaints about the proposed development were motivated by competition and the proposed development complied with the Territory Plan.
Note: copyright of the material in this clipping resides with Fairfax Media. Usage permitted in accordance with the Australian Copyright Act 1968, Section 42: Fair dealing for purpose of reporting news. Source: The Canberra Times – 29 August 2010
Call-in powersn block 475, section 79, Giralang
Paper and statement by minister
MR CORBELL (Molonglo—Attorney-General, Minister for the Environment and
Sustainable Development, Minister for Territory and Municipal Services and Minister for Police and Emergency Services): For the information of members, I present the following paper:
Planning and Development Act, pursuant to subsection 161(2)—Statement regarding exercise of call-in powers—Development application No. 201119903—Blocks 4 and 5 Section 79 Giralang, dated 17 August 2011.
I ask leave to make a brief statement in relation to the paper.
MR CORBELL: On 16 June this year I directed, under section 158 of the Planning and Development Act, the ACT Planning and Land Authority to refer to me development application No 201119903. The DA relates to blocks 4 and 5, section 79, Giralang—the Giralang local centre.
The DA sought approval for a variation to the crown lease to permit the construction of a new commercial centre, comprising the construction of a new supermarket, retail outlets, undercroft and basement car parking, basement storage, loading dock and associated landscaping.
On 11 August this year I decided to consider the development application. On 17 August this year, I approved the application using my powers under section 162 of the Planning and Development Act.
In deciding the application, I gave careful consideration to the requirements of the territory plan, the advice of the Environmental Protection Authority, the Territory and
Municipal Services Directorate, ActewAGL, the Conservator of Flora and Fauna, the
Education and Training Directorate and, as required by the legislation, the ACT Planning and Land Authority. I also gave consideration to the representations received by ACTPLA during the public notification period for the DA that occurred in May this year.
I have imposed conditions on the approval of the DA which require, among other things, that appropriate leasing arrangements be put in place to ensure that the future lease of the land will facilitate the new development and the removal of three regulated trees.
The Planning and Development Act provides for specific criteria in relation to the exercise of the call-in power. I have used my call-in powers in this instance because I consider that the proposal will provide a substantial net community benefit to the Canberra community through the significant improvement in the range of retail facilities that will be available, particularly in terms of convenient supermarket retailing in the Giralang area. Further, it provides residents of Giralang with an appropriate range of convenience retail opportunities within walking or cycling distance from their homes.
The use of my call-in powers in this instance will also enable the timely construction of the proposed development by the proponent and will remove a significant area of urban blight in the neighbourhood.
Section 161(2) of the Planning and Development Act specifies that, if I decide an application, I must table a statement in the Assembly not later than three sitting days after the day of the decision, and I have therefore tabled this statement.
MS LE COUTEUR (Molonglo), by leave: I have three points that I want to make about this. First, the Greens are pleased that Giralang will finally have local shops again. It is disgraceful that it is taking so long to get the normal facilities of most suburbs that have local shops. So I want to make it very clear that we certainly believe Giralang deserves to have a decent shopping centre.
But this is not just about what happens in Giralang. There is a wider issue, and there are two points that I would like to be considered. Giralang previously had local shops, but it might be that, after this, in effect what Giralang is getting is a group centre. My understanding is that while the supermarket itself is 1,500 square metres, if you included the loading zone, the storage area and the adjacent shop, which is expected to have the same owner, I have been told this would be an area of greater than 2,000 square metres, which is a lot bigger than is normally allowed in a local shopping centre.
I also understand that the entire development will be greater than 5,000 square metres, which again is substantially bigger than most local shopping centres and is getting more in the scale of a group centre. So the fact that this appears to be a considerably bigger development than a normal local centre brings up two important issues. Firstly, there is the issue of traffic. The roads in Giralang were designed for a local shopping centre. They were not designed for a group centre. One of the issues that I know some Giralang residents have had is the traffic impact on their suburb and whether it will be positive.
The other issue is of course, as this will be a substantially bigger shopping centre than the one it replaced, so what impact this is going to have on other local shops in the area.
We do not want to see that Giralang gains a shopping centre at the expense of a surrounding suburb. That is not good policy.
I was disturbed that, in questions without notice earlier today, the minister said that in considering the impact of the potential new supermarket no account was taken of the ownership—whether or not it would be a major supermarket or one of the independents—because that clearly is one of the issues in terms of its effect on neighbouring shops. I would like to say very clearly that we are concerned that the government has not done sufficient work on the effect on neighbouring shops and on the effect on traffic.
Looking to an ACT-wide issue—in fact, probably an Australia-wide issue—the other issue that we are concerned about is the effect on the current supermarket duopoly of Woolworths and Coles. Woolworths and Coles we learned from the John Martin supermarket report currently have 72 per cent of the supermarket sales in the ACT. I do not know what the percentage is Australia-wide, although I do know that in the
ACT it is higher than in other areas.
Everyone here is a believer in competition, but everyone here probably also did their economics 101. Duopoly is not competition. Duopoly leads to some anti-competitive effects. Someone will be suffering from it. It may well not be the consumers of
Canberra, but it could well be the farmers of Australia, who are not always getting a fair price for their produce.
I think this is an important issue. The government did start work on a supermarket policy, but unfortunately it has not finished it. The previous Chief Minister talked about a floor space dominance test, but the government does not appear to have progressed this as yet.
I think that it is frustrating. It is particularly frustrating that the planning minister has called this in because it has a substantial public policy impact without, in fact, going to the significant public policy issue with supermarkets of retail competition and of the duopoly in the ACT. So I think that, as a call-in, this is very much an opportunity lost.
Again, I welcome a shopping centre in Giralang but I am disappointed at the opportunity lost to do better.
MR SESELJA (Molonglo—Leader of the Opposition), by leave: I think that where the planning minister has been brought to on this call-in power is part of a sorry saga that has been the Giralang development and the Giralang supermarket development. I think that the planning minister had no choice because of how heavily compromised this process has been by the ACT Labor government. By ministers and agencies acting on their behalf, this process became so compromised that there was little, if any, choice but for the minister to call this in.
Of course, those are not just my words; those are the words of the chief planner in relation to this issue. I think that there are a number of outstanding issues in relation to how this process has been handled and what confidence the community can have in the future that the planning process will not be completely compromised. It is a statutory planning process that the people of the ACT should be able to have confidence in, that is legislated so that we can have confidence in it, yet this government treats it as its own personal plaything. And, unfortunately, that has been the story in relation to Giralang.
The chief planner said that it was so compromised that the government should consider calling this process in. He said that there was interference, consistent interference, at a number of levels. He said that there were attempts to influence the decision coming from the Chief Minister himself. Neil Savery also said—and this has never been disputed by anyone; it has never been disputed by legal advice or otherwise—that there had been ongoing interference from departments over a period of years. Not just one letter but ongoing, inappropriate interference in this process over a period of years.
The documents we have show Neil Savery as long ago as March of 2008 saying that the process was being compromised. As long ago as March of 2008 Neil Savery was saying that he wanted to use correspondence from the proponent on their dealings with a number of ministers while a development application was on foot to demonstrate his concerns about interference in this process.
So let us not be mistaken: this was not one inappropriate letter which was a completely inappropriate letter; this was Neil Savery, the chief planner, saying publicly, time after time, that he was concerned that there was, over a period of years, interference in the statutory planning process.
Neil Savery, in relation to Giralang, effectively said that this government was putting the politics right back into planning. He used those words back at this government. He said, “Well, you can’t actually stand up and say that you’re taking the politics out of planning because of the way you’re actually doing things.” It shows the character of this government, doesn’t it? They say one thing in this place—taking the politics out of planning—and they interfere with and compromise processes. For what end? That is the question we have to ask ourselves, and there are a number of outstanding questions. This will not finish here with this call-in. There are a number of questions. What was the motivation for the government? Why were they so desperate to stop the people of Giralang from having their supermarket? Why was the government so hostile to one supermarket development in Giralang? What was driving that motivation?
These are legitimate questions which we will be asking, which the community of
Giralang will be asking and which anyone who has an interest in the integrity of our planning system would be asking. Why did the government put itself at risk, as Neil Savery said, and why was it so desperate to put in place a system that would stop this particular development from going ahead? What was it? What was it about the surrounding areas, what was it about other players involved, that said this government should bend over backwards to try and stop a development which the planning minister has now agreed is a legitimate development?
The planning minister has actually vindicated Neil Savery through this call-in. Neil
Savery said, “You’ve got to call it in.” Neil Savery said: “Well, it’s actually a reasonable development and there shouldn’t be interference in it. It doesn’t offend the Government’s supermarket policy.” Simon Corbell has now agreed with that through this call-in.
There are a number of outstanding questions in relation to what is, I think, a fairly grubby affair. This has been a dodgy process. It is almost unprecedented, I think, to have such a senior public servant blowing the whistle on this kind of dodgy process which has been engaged in by ministers, their agencies and their offices on their behalf.
Andrew Barr, as the planning minister at the time, is going to have to answer a lot more questions. He is not going to be able to dodge questions forever like he did today, where he will not tell us what conversations he had with Neil Savery. He will not tell us whether or not he had a role in Neil Savery’s decision to step aside.
The other question that flows is: what is the status of Neil Savery now? He has been vindicated by this action but he was forced to step aside on this particular development and he was also pushed aside permanently, it seems, from his role as chief planner. What is the status of Neil Savery? Why is he being punished for standing up to the government, for standing up for good process, for standing up against the compromise of that process? What is Neil Savery’s position now? What is his status?
These are questions that this government will have to answer before this is out, before we are finished with this process, because this process smells. Neil Savery says it smells; we say it smells. And there are mountains of documentary evidence that suggest that something is amiss here. We are going to continue to pursue it.
ACT Legislative Assembly
Sitting: 23 August 2011