An ACT administrative tribunal finds it difficult to believe the territory's planning office was unaware retail giant Woolworths is trading in breach of its lease at Bonner.
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Having established there was a breach of the Crown lease purpose clause, in that the supermarket exceeded the permissible 1500 square metres by about 140 square metres, the tribunal has decided not to take any more action.
IGA operators Chris Haridemos of Kaleen and Alex Vizadis of Evatt pointed out the breach, saying it gives Woolworths a larger trading area than other operators who complied with their leases and, if not fixed, would give them an unfair advantage. Neighbouring supermarkets are angry no further action is proposed.
The Civil and Administrative Tribunal's presiding member Don McMichael said given the present state of flux and uncertainty about supermarket sizes in the ACT, there was no significant planning purpose to take the matter further.
He said Woolworths could be forgiven for making a wrong assumption over the allowable floor space, because of the lack of clarity in a clause of the lease.
Forde supermarket owner Matthew Farrah said Woolworths at Bonner had a huge impact on his operations which could put him out of business. ''I can't understand why ACTPLA would undermine their own lease hold system. Surely there needs to be some sort of investigation into this?''
The tribunal was not persuaded Bonner's supermarket would have an adverse impact on nearby supermarkets at Forde or Amaroo.
Canberra developer Nikias Properties built the shops to conform with Woolworths' design brief.
Dr McMichael said evidence showed that throughout its negotiations with first Mr Nikias and then the Bonner Shops Pty Ltd, Woolworths was seeking 1900 square metres of floor space, comprising 1500 square metres for the supermarket, 200 square metres for the liquor store and 200 square metres for offices. ''And at no stage does there appear to have been any indication from [ACTPLA] that the intention of the Crown lease was to require all of these requirements to fit into the 1500 square metres limit imposed on supermarket use.''
In a separate case dealing with a similar issue earlier this year, IGA operators from Canberra's north challenged in the Supreme Court Planning Minister Simon Corbell's approval of Giralang's supermarket.
Nikias Properties developed the site for Woolworths and the IGA operators said it was too big. However, they lost.
In July, Supreme Court Justice John Burns found Mr Corbell had acted lawfully.
The IGA operators have appealed.
In the administrative tribunal case, Dr McMichael said no regard was given to a release Mr Corbell issued in August before the recent ACT elections, saying the Labor government would cap the size of future supermarkets in local centres to 1000 square metres.
Mr Corbell said since self-government, no controls had been exercised on supermarkets' gross floor area and a cap would ensure a retail hierarchy was maintained, and communities would continue to have local shops.
Meanwhile, the Australian Competition and Consumer Commission is reviewing Woolworths' proposed acquisition of the Supa IGA supermarket in Hawker.
