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Mater Health Services North Queensland Ltd v Townsville City Council

 

[2019] QPEC 45

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Mater Health Services North Queensland Ltd v Townsville City Council & Ors [2019] QPEC 45

PARTIES:

MATER HEALTH SERVICES NORTH QUEENSLAND LIMITED

(ACN 094 529 263)

(appellant)

v

TOWNSVILLE CITY COUNCIL

(respondent)

and

LAUTARET PTY LTD

(ACN 165 504 512)

(co-respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING

(co-respondent by election)

FILE NO/S:

13 of 2018

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Cairns

DELIVERED ON:

8 October 2019

DELIVERED AT:

Cairns

HEARING DATE:

5, 6, 7, 8, 9, 12, 13, 14, 15, 16 and 23 November 2018; further written submissions delivered 28, 30 November, and 4, 11 December 2018.

JUDGE:

Fantin DCJ

ORDERS:

The proceeding is adjourned for review to 9am 11 October 2019.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – submitter appeal against approval of a development application for a material change of use – proposed 22 bed private hospital with associated health care services on site including heritage building – where council approved the application – whether the proposed development is for uses contemplated by the planning scheme in this location – whether it is consistent with the centre's hierarchy – whether it would have unacceptable impacts on heritage and character – whether it would have unacceptable visual impacts – whether there is a need for the proposed development – whether the development would have unacceptable impacts on Mater’s existing hospital facilities and future redevelopment – whether in the exercise of the discretion the proposed development should be approved

LEGISLATION:

Integrated Planning Act 1997 (Qld)

Planning Act 2016 (Qld) s 3, s 5, s 43, s 45, s 59, s 60, s 61, s 229, s 311

Planning and Environment Court Act 2016 (Qld) s 43, s 45, s 47

Planning Regulation 2017 (Qld) s 30, s 31

Queensland Heritage Act 1992 (Qld)

Sustainable Planning Act 2009 (Qld) s 326

CASES:

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16, approved

Bell v Brisbane City Council [2017] QPEC 26

Bell v Brisbane City Council (2018) 230 LGERA 374

Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102

Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33

Brown v Brisbane City Council & Anor [2005] QPELR 629

Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132

Cut Price Stores Retailers Ltd v Caboolture Shire Council[1984] QPLR 126

H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture & Anor (1992) 80 LGERA 230

Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, approved

Jesmond Hospital Pty Ltd v Strathfield Municipal Council (1970) 19 LGRA 347

Kentucky Fried Chicken Pty Ltd v Gantidis & Anor (1979) 140 CLR 675

Mackay v Brisbane City Council [1992] QPLR 65

Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPELR 1158

Peach v Brisbane City Council & Anor [2019] QPEC 41

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515

Rowley v Caloundra City Council [2009] QPELR 393

Salmar Holdings Pty Ltd v Hornsby Shire Council & Anor (1971) 23 LGRA 14

Sempf v Gatton Shire Council (1997) QPELR 198

Smout v Brisbane City Council [2019] QPEC 10

Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306

Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337

Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82

COUNSEL:

C L Hughes QC and A Skoien for the appellant

B Job QC for the respondent

D R Gore QC and M Batty for the co-respondent

SOLICITORS:

Emanate Legal for the appellant

Keir Steele for the respondent

Wilson Ryan Grose for the co-respondent

Table of Contents

Overview5
The proposed development6
The assessment regime8
Is the proposed development appropriately located?13

What are the relevant locational requirements for hospital services and facilities, and are hospital services and facilities confined to specialised centres?

18

Does location of the proposed development on the land compromise the intended role or successful functioning of centres?

21

The Mixed Use Zone Code

22

Specialised Centre Zone Code

24

Conclusion on whether Fulham Road medical precinct “will continue to be the focus of private acute medical services in the Townsville region” and whether the proposed development will “compromise the intended role or successful functioning of centres”?

37

What uses are contemplated in this location, and does TCP support the location of the proposed development on the land?

38
Will the proposed development have unacceptable impacts on heritage and character?38

The heritage place

38

The heritage place and its statement of significance

41

Works proposed to the heritage place

42

Design of the new hospital building

44

Conclusion on impacts on the heritage place

47

Character dwelling at 2A Lamington Road

47
Is the proposed development appropriately designed?49

Impacts on character and streetscape

50

Height

53

Transitioning in height and scale

55

Contribution to streetscape

56

Built form

57

Conclusion on whether the proposed development is appropriately designed

58
Other miscellaneous issues58
Conclusion regarding assessment of proposed development against the assessment benchmarks59
Any other relevant matter under s 45(5)(b) PA59

Is there a need for the proposed development?

60

Will the proposed development have unacceptable impacts on Mater’s existing facilities and redevelopment and the range of health care services provided?

64

Other “relevant matters” that justify approval

65

Conclusion on “relevant matters”

67
Conclusion68
Appendix A69

Overview

  1. [1]
    Planning appeals involving heritage buildings or new hospitals are relatively uncommon. This one involves both.
  1. [2]
    During the great depression of the 1930s, the Queensland government embarked on an ambitious program to build grand institutional school buildings throughout the State. The program served the dual purposes of reinforcing the importance of education in the fledging State and creating a make work scheme for unemployed men in the interwar period.
  1. [3]
    As part of that program, in 1939 a vast three storey red brick building was built on Ingham Road in Townsville, a busy thoroughfare for travellers entering the city from the west. The school is an enormous institutional building, 73 metres long, 20 metres wide at its three projections and three storeys high (‘the heritage building’).[1] Some idea of its scale may be gleaned from the photographs in Appendix A. It dominates the Ingham Road frontage of the site. A set of memorial gates was built to commemorate students and staff who had lost their lives in World War I.
  1. [4]
    For about 70 years, the building functioned as a school and then an education centre. In 1998 it was entered on the Queensland heritage register. In about 2009 it ceased being used. For the last decade, the heritage building has remained vacant. In 2014 the State sold the land to the co-respondent (‘Lautaret’), which also acquired land to the east and west.
  1. [5]
    In conjunction with a group of local medical specialists, Lautaret now wants to develop a small private hospital of 22 overnight beds and associated uses on land that includes the heritage building. It proposes to retain, restore and reuse the heritage building, construct a new hospital building connected to the heritage building by a glazed pedestrian bridge, and demolish or remove a house at the rear.
  1. [6]
    The respondent (‘council’) approved Lautaret’s development application subject to conditions, as did the relevant State department as concurrence agency with jurisdiction for development on a State heritage place.
  1. [7]
    Townsville has only one public hospital (‘the Townsville hospital’) and one private hospital. For decades, the appellant (‘Mater’) has enjoyed a monopoly as the only private provider of overnight private hospital services.[2]
  1. [8]
    Mater made a submission opposing Lautaret’s proposed development and appealed against the approval of its development application.
  1. [9]
    For the reasons that follow, I have decided that Lautaret’s development application should be approved subject to conditions.
  1. [10]
    The land comprises six lots with a total area of approximately 7,992m2, including a closed portion of Wilson Street (‘the land’). It is generally rectangular in shape but its eastern end tapers diagonally upwards to a point, like the prow of a ship.[3] The land is on the northern side of Ingham Road, a busy arterial road running east-west, and Sturt Street. It fronts a major signalised intersection with a railway level crossing on the southern side.
  1. [11]
    The land’s dominant frontage of about 100 metres is to Ingham Road to the south. The next most prominent frontage is about 68 metres to Sturt Street, to the south east. It has minor frontages to O’Brien and Wilson Streets to the north east and a very small frontage, by virtue of a battle axe access, to Lamington Road to the north west.
  1. [12]
    The land is improved by the heritage building, and a dwelling house (the latter to be demolished or removed). The balance of the land is vacant.
  1. [13]
    The heritage building is an attractive landmark in an otherwise unattractive local visual catchment. Ingham Road and Sturt Street here are cluttered with vehicle dominated commercial uses, advertising signage, parked cars on vacant lots, and other disparate uses, all with negligible site landscaping.[4]
  1. [14]
    More broadly, the land is located in a mixed use area which includes residential, community facilities, commercial, retail and lower impact industrial uses. Immediately to the rear of the land to the north is the current State primary school. The proposed development would be separated from the nearest school building, a large shed or multi-purpose facility, by more than 30 metres. Beyond the school is an area of residential development extending to the lower slopes of Castle Hill. To the east across Sturt Street are multiple outdoor car sales yards, as well as service station, retail, commercial and short-term residential uses. About 250 metres to the east is the entrance to the operational Townsville Railway Station. To the south across Ingham Road and the railway corridor are various community uses including an educational centre and a church, as well as a commercial building. Further south is significant vacant land, as well as residential uses and the Castling Street Heritage Centre. To the west of the land are various small-scale retail, commercial and lower impact industrial uses.
  1. [15]
    The main issues raised by the parties concerned whether the proposed development is for uses contemplated by the planning scheme in this location, is consistent with the centres hierarchy, would have unacceptable impacts on heritage and character, and would have unacceptable visual impacts. Further, whether there is a need for the proposed development, and whether the development would have unacceptable impacts on Mater’s existing hospital facility and its plans for future redevelopment.

The proposed development

  1. [16]
    Mr Griffin gave evidence for the developer. He explained that it had been involved in other heritage developments in Brisbane. After Lautaret acquired the land, he was approached by a group of Townsville doctors (two orthopaedic surgeons, a cardiologist and a urologist) seeking to build an alternative efficient private health services provider in Townsville. The doctors incorporated an operating entity and it secured a Queensland Health Licence in 2017.
  1. [17]
    The development application for the proposed development seeks a development permit for a material change of use for a 22 bed hospital, health care services, a food and drink outlet and a pharmacy, and a preliminary approval for building works (demolition of a dwelling within the Character Residential zone).
  1. [18]
    The proposed development comprises three main components. In summary:
  1. retention and refurbishment of, and extension to, the existing heritage building on the western part of the land.

The exterior of the heritage building will remain largely unchanged, save for a glazed pedestrian bridge connecting the heritage building to a new building. There will be some modification to internal fit-out, respecting the existing partitions and concertina doors which remain from the school’s operational period. The internal fit-out will include a lift to meet equitable access requirements, consulting, treatment and testing rooms, staff education and research rooms, staff dining and lounge areas, pathology department, pharmacy, administration, café, back of house facilities and an area for mechanical plant. The balance of the former school site is largely intended to be used for parking, vehicle circulation and landscaping;

  1. construction of a new five storey hospital building (plus rooftop plant) to the east of the heritage building.

It will include 22 overnight beds, at least four operating theatres and associated facilities, intensive, inpatient and coronary care units, a cardiac catheter laboratory and cardiology unit, sterilisation department, recovery area, holding bays, day units, a day theatre/procedure room, admissions and administration area, waiting rooms, entry foyer, food services, ambulance bay and radiology unit. The medical specialities that will be the initial focus of the hospital are urology, maxillofacial, interventionist cardiology and orthopaedics.

  1. demolition of a dwelling within a Character Residential zone.

This dwelling is not visible from Ingham Road, the dominant frontage, save for parts of its roof. The dwelling is currently accessed via a battle axe driveway from Lamington Road at the rear of the site. The driveway is burdened by an easement servicing the abutting dwelling, which will be amalgamated into the remaining dwelling house by a future development application.

  1. [19]
    It is not proposed to stage the development. The site cover will be approximately 35.5% of the land. The total gross floor area of both buildings is approximately 9,071m2. The heritage building is currently set back at least 25 to 27 metres from the Ingham Road frontage and 24.5 metres from the western boundary. The new building will have a setback from Sturt Street starting at 23 to 27 metres but tapering down to the boundary itself.[5] It will be built to the boundary on its northern frontage to O’Brien Street. There is a 5 metre separation between the new building and the heritage building, over which the glazed pedestrian link is built.
  1. [20]
    There will be 104 car parking spaces. The primary access will be from Ingham Road, near the western boundary, with secondary access from Wilson Street.

The assessment regime

  1. [21]
    Under the relevant planning scheme, Townsville City Plan 2014 (‘TCP’), the land is:
  1. in the Strategic Framework, within the Urban Area, and abutting the Core Public and Active Transport Corridor;
  1. subject to overlays, including the Cultural Heritage Overlay;
  1. within the Mixed Use zone, save for a small lot in the north western corner (where the dwelling house is located) within the Character Residential zone. The part of Wilson Street which was closed is taken to be included in the Mixed Use zone.[6]
  1. [22]
    The application required referral to the Department of Infrastructure, Local Government and Planning State Assessment and Referral Agency as a concurrence agency for public passenger transport, railways and Queensland heritage place.
  1. [23]
    The site of the heritage building is a listed place under the Queensland Heritage Act 1992 (‘the Heritage Act’). As a result, the development application also had to be assessed under the Queensland Heritage Place State Code Version 1.10 (‘the State Heritage Code’).
  1. [24]
    It was common ground that the appeal must be decided in accordance with the statutory framework in the Planning and Environment Court Act 2016 (Qld) (‘PECA’) and the Planning Act 2016 (Qld) (‘PA’).[7] In deciding the appeal, the court must confirm the decision appealed against, change the decision appealed against, or set it aside and either make a decision replacing it or return the matter to the council with directions the court considers appropriate.[8]
  1. [25]
    The appeal is by way of hearing anew.[9] Lautaret has the onus of establishing that the appeal should be dismissed.[10] The court is to determine the appeal standing in the shoes of the assessment manager and on the law applicable at the date of the proceeding.[11]
  1. [26]
    The development application was impact assessable. It was publicly notified twice. There were ten properly made submissions: two from Mater, five opposing or raising concerns about the development, and two supporting the development.
  1. [27]
    The submissions opposing the development, apart from Mater’s, were from residents in the locality. One of those was from persons associated with the town planning firm engaged by Mater to prepare its own application for preliminary approval for its redevelopment. It raised concerns about conflicts with the planning scheme, the scale and bulk of the new building, impacts on amenity, traffic and need. The other submissions raised concerns about traffic, noise and light, access, amenity, the scale of the new building, visual impact and need. To the extent that at least one of those submissions raised issues which were not proper town planning grounds,[12] I have disregarded those.
  1. [28]
    The submissions supporting approval of the development were from a nearby car dealership and an architectural firm. They referred to the desirability of using the heritage building which had lain dormant for so long, the adaptive reuse of the heritage building, the limited impact of the new development on the heritage building, the merits of the new building, the creation of jobs, the provision of healthcare facilities, the activation of the site, and the provision of a quality architectural solution to this gateway site.
  1. [29]
    Impact assessment is an assessment that:
  1. (a)
    must be carried out:
  1. (i)
    against the assessment benchmarks in a categorising instrument for the development (the TCP and the State Heritage Code)[13], to the extent relevant;[14] and
  1. (ii)
    having regard to any matters prescribed by regulation, to the extent they are relevant; and
  1. (b)
    may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[15] [emphasis added]
  1. [30]
    Subject to s 62[16], the assessment manager, after carrying out the impact assessment, must decide (a) to approve all or part of the application, or (b) to approve all or part of the application, but impose development conditions on the approval, or (c) to refuse the application.[17]
  1. [31]
    During final addresses Lautaret raised for the first time an argument about the proper construction of s 45(5) PA. It submitted that s 45(5)(b) was only engaged or enlivened if the court found non-compliance with the assessment benchmarks in s 45(5)(a), and if the proposed development complied with the assessment benchmarks, the court was not permitted to have regard to any other relevant matter under s 45(5)(b).
  1. [32]
    On the plain words of the section, it was an unattractive argument.
  1. [33]
    Because the point was raised late and not addressed in any list of issues or written submissions, I directed the parties to provide supplementary written submissions with respect to the proper construction of s 45(5).
  1. [34]
    Mater and the council joined in rejecting Lautaret’s construction of s 45(5).
  1. [35]
    Mater argued[18] that s 45(5), properly construed, entitled the assessment manager to assess against, or have regard to, “any other relevant matter” irrespective of whether there is non-compliance with the assessment benchmarks in s 45(5)(a). It said that this construction was consistent with the plain and unambiguous words of the section, was consistent with other provisions of the PA setting out the different approaches to code assessment and impact assessment, and was confirmed by the Explanatory Notes to the Planning Bill 2015 (Qld). It said that the use of the word “other” in s 45(5)(b) supports that construction because it reflects the fact that the matters in s 45(5)(a) are also “relevant matters” for the assessment of the application. It pointed out that there are no words of limitation in s 45(5)(b) that impose some condition precedent to the consideration of “any other relevant matter”, when the legislature could easily have included them if it had intended that. It pointed to the approach to code assessment in s 45(3) and 45(4), which expressly limits the considerations for code assessment to the mandatory provisions identified. It also relied upon the fact that there is no requirement in s 60 PA mandating approval of a development if it complies with all the assessment benchmarks.
  1. [36]
    The council agreed with Mater’s construction of s 45(5).[19] It also pointed to other matters that supported the conclusion that s 45(5)(b) was not qualified in the way suggested by Lautaret. One was that the examples of relevant matters given in s 45(5)(b) include “whether assessment benchmarks or other prescribed matters were based on material errors”. That example could potentially apply where a development application did comply with the assessment benchmarks. Another was that Lautaret’s construction would create tension with the obligation under s 45(5)(a)(ii) to have regard to matters prescribed under regulation, which includes, for example, the common material,[20] which includes properly made submissions.[21]
  1. [37]
    Council also submitted that it would be “an exceptional case for a proposal which complied with assessment benchmarks to be refused on the basis of relevant matters”[22] and that this was not such a case.
  1. [38]
    In reply, Lautaret no longer advanced the submission that s 45(5)(b) was only engaged if there is non-compliance with an assessment benchmark.[23] It agreed with council’s submission that it would be an exceptional case for an otherwise compliant proposal to be refused on the basis of relevant matters.[24]
  1. [39]
    Thus, it was ultimately common ground that s 45(5)(b) will be engaged even if the proposed development complies with all the assessment benchmarks. That is, the assessment manager retains a discretion under s 45(5)(b) to consider “any other relevant matter”. I agree with that construction.
  1. [40]
    Ashvan Investments Unit Trust v Brisbane City Council[25] was decided after submissions were received in this appeal. In that case, Williamson QC DCJ embarked upon a considered analysis of how impact assessable development applications under the PA are to be decided.[26] I respectfully agree with his analysis. The position ultimately reached by the parties in this appeal after supplementary written submissions is broadly consistent with that analysis.
  1. [41]
    Section 60(3) confers a power to exercise a broad planning discretion. It can be distinguished from the provision conferring power to decide a code assessable application, which requires the assessment manager to approve the application to the extent the development complies with all of the assessment benchmarks for the development.[27] The exercise of the discretion in s 60(3) is not constrained or mandated by the existence of compliance, or non-compliance, with the assessment benchmarks. It requires an assessment of the merits of the proposal against the planning scheme, and other relevant considerations, to reach a balanced decision in the public interest.[28]
  1. [42]
    The discretion must be exercised based on the assessment carried out under s 45 of the PA. Non-compliance with an assessment benchmark will not automatically warrant refusal of a development application.
  1. [43]
    Assessment benchmarks are the matters that an assessment manager must assess assessable development against.[29] They do not include a matter of a person’s opinion, or a person’s circumstances (financial or otherwise), or for code assessment, a strategic outcome, or a matter prescribed by regulation.[30] Examples of an assessment benchmark will include a code, a standard, or an expression of the intent for a zone or precinct. The Act does not otherwise seek to define or constrain what an assessment benchmark is.
  1. [44]
    Conformity with the planning scheme is, prima facie, in the public interest.[31] A decision maker must take a planning scheme to be an expression of the public interest in terms of land use.[32]
  1. [45]
    The decision making function for impact assessment must be performed in a way that advances the purpose of the Act.[33]
  1. [46]
    Despite the applicable statutory regime being the PECA and PA, the list of disputed issues in this appeal was framed by reference to the language of the previous statutory regime, referring to conflicts with the planning scheme and whether there were matters said to justify approval despite the conflicts.[34] Mater identified more than 80 provisions of TCP and the State Heritage Code that it contended that the proposed development conflicted with.[35]
  1. [47]
    The parties were directed to provide a single list of the disputed issues requiring determination in the appeal. They did not do so before or during the hearing. During addresses Lautaret and council provided an updated list of issues as agreed between those two parties. Mater provided its own updated list of issues which continued to identify a large number of provisions.[36]
  1. [48]
    This had a number of consequences. The initial framing of issues using the language of an inapplicable statutory regime, referring to “conflicts” and “grounds”, had the potential to lead the Court into error by inviting the Court to ask and answer the wrong questions. This approach persisted even in Mater’s written submissions delivered at the end of the hearing.[37]
  1. [49]
    The hearing was prolonged by some evidence of questionable relevance and utility. Reliance on a multitude of scheme provisions without any real attempt to differentiate their relative importance meant the hearing and written submissions were protracted. In that context, I endorse the remarks of other judges of this court about the need to bring a more forensic approach to defining disputed issues.[38]
  1. [50]
    In summary, Mater’s position is that the proposed development does not comply with the assessment benchmarks in both TCP and the State Heritage Code, and that the development application should be refused on that basis.[39] It further argues that because the appeal involves the important issue of planning for, and the provision of, a range of crucial health services for the benefit of the community, the Court could refuse the development application if warranted by the adverse impact upon existing and planned health facilities, as a “relevant matter”, irrespective of whether there is non-compliance with any of the provisions of the TCP or the State Heritage Code.[40] As to the latter argument, this court has recognised that, ordinarily, one would need strong reasons for refusing an application, which on its face, was consistent with adopted planning controls.[41]
  1. [51]
    The council and Lautaret continue to support approval of the proposed development. They say that there are no relevant matters which would warrant refusal of the proposed development, and that the public interest would be considerably advanced by its approval.
  1. [52]
    Here, the relevant assessment benchmarks require evaluation of whether the proposed development:
  1. (a)
    is appropriately located;
  1. (b)
    is appropriately designed; and
  1. (c)
    would have unacceptable impacts on heritage and character, and unacceptable visual impacts.[42]
  1. [53]
    It is important to bear in mind that there is no mandated fetter on the exercise of the court’s broad planning discretion because of non-compliance with the relevant assessment benchmarks. The assessment may also be carried out against, or having regard to, any other relevant matter.
  1. [54]
    Both Lautaret and Mater point to other matters said to be relevant to contend that the development application should be approved or refused, including whether:
  1. (a)
    there is a need for the proposed development; and
  1. (b)
    there will be unacceptable impacts on Mater’s existing facilities and its planned and approved redevelopment of them.
  1. [55]
    The co-respondent by election, Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning, was excused from active participation in the hearing.

Is the proposed development appropriately located?

  1. [56]
    Mater focuses on the hospital component of the proposed development. That is unsurprising given that the balance of the proposed uses are code assessable. In the mixed use zone, “health care services” (defined as premises for medical, paramedical, alternative therapies and general health care and treatment of persons that involves no overnight accommodation)[43], “shop” (pharmacy) and “food and drink outlet” are all code assessable uses. It is only the hospital component of the proposed development which is impact assessable.
  1. [57]
    In summary, Mater submits that:
  1. the proposed development does not comply with the locational requirements of the TCP for hospital services and facilities;
  1. hospital services and facilities should be located in “specialised centres”, consistent with the hierarchy of centres established by the TCP;
  1. the land does not form part of a “specialised centre”;
  1. the purpose of the hierarchy of centres is to ensure that centres provide their desired function and that the efficient and effective performance of that function is protected; and
  1. there is no support in the TCP for the location of the proposed development on the land.
  1. [58]
    There is no express statement in the TCP indicating that a new hospital should not or cannot be developed on the land. Mater relies upon a number of provisions for context and, in effect, asks the Court to draw inferences from those provisions that a new hospital is not intended on the land.
  1. [59]
    That requires consideration of the following questions. What are the locational requirements for hospital facilities and services in TCP, and are hospital services and facilities confined to specialised centres? Does the location of the proposed development on the land compromise the intended role or successful functioning of centres in TCP? What uses are contemplated in this location? Does TCP support the location of the proposed development on the land?
  1. [60]
    Before turning to those questions, there are some administrative provisions and broad statements of intent that are relevant.
  1. [61]
    When development is proposed on premises included in more than one zone or overlay (as is the case here), the level of assessment is the highest level for each aspect of the development under each of the applicable zones or overlays.[44] Where development is proposed on premises partly affected by an overlay, the level of assessment for the overlay only relates to that part of the premises affected by the overlay.[45] Where development is proposed on premises partly affected by an overlay, the assessment criteria for the overlay only relate to the part of the premises affected by the overlay.[46]
  1. [62]
    In terms of assessment against the codes, development that complies with:
  1. the purpose and overall outcomes of the code, complies with the code; and
  1. the performance or acceptable outcomes, complies with the purpose and overall outcomes of the code.[47]

That applies to impact assessment.[48]

  1. [63]
    The Strategic Framework contains some broad statements of intent that are relevant.
  1. [64]
    Townsville is the largest city in Queensland outside the south-east, and its population of around 190,000 in 2011 is set to grow to between 270,000 and 300,000 people by 2031.[49] It is the major economic and service centre for North Queensland and provides the highest order community and commercial services for the region “including health … facilities which serve the whole of North and North West Queensland. … it enjoys a diverse economic base, with strong projected growth.[50]
  1. [65]
    Townsville is intended to continue to evolve as the second capital of Queensland, and the largest city in northern Australia. A range of factors contribute to the city’s increasing significance, and its enhanced role is reflected in significant growth in the economy and population.[51]
  1. [66]
    Its diverse and healthy economy is driven by population growth and by its regional position as the capital of North Queensland.[52] Growth is anticipated in a range of industries, and specifically in health and professional services. Indeed, further economic growth in those areas and other sectors is not only anticipated, it is “required to maintain quality of life for the city’s residents”.[53]
  1. [67]
    It is also intended that the city will become more compact and efficient, led by intensified development in and around the CBD.[54] The subject land is close to the CBD.
  1. [68]
    The Strategic Framework’s Theme, “Shaping Townsville” relevantly states that:
  1. “The city is structured around a network of activity centres, ranging from the principal centre (CBD) to small neighbourhood centres. These activity centres are focal points for the city and its community, and they accommodate the majority of future employment, community and commercial activities …”;[55] and
  1. “A hierarchy of activity centres exists to ensure that the scale and form of development is appropriate to the location, and that the centre plays an appropriate role within the wider city. The hierarchy contributes to an efficient, well-functioning and accessible city. While the scale and form of activity centres varies, all activity centres are founded on a mix of land uses, and are supported by residential areas that enhance each centre’s viability.”[56] [emphasis added]
  1. [69]
    The Strategic Framework contains Specific Outcomes for activity centres. Under the heading “Nature of centres” it states that “a broad range of uses are [sic] encouraged at activity centres, appropriate to the identified hierarchy, to support vibrancy, community life and health and economic development and competition[57] [emphasis added]. An activity centre contains a mix of uses and is multi-functional.[58]
  1. [70]
    However these statements about the breadth and mix of uses in activity centres must be read in the context of later statements, which make it clear that “specialised centres” are different to other activity centres. As their name suggests, they incorporate activities with a specific and limited function, rather than a mix of uses.[59]
  1. [71]
    The general principles of statutory construction apply to the construction of planning schemes.[60] The TCP must be read as a whole, examining the provision in its context, and construing the instrument on the prima facie basis that its provisions are intended to give effect to harmonious goals[61] and in a way that best achieves their apparent purpose and objects. Planning schemes are to be construed broadly rather than pedantically or narrowly, and with a sensible, practical, approach.[62] The opinion of a town planner upon a question of construction of a planning scheme is irrelevant and inadmissible.[63]
  1. [72]
    The TCP adopts a hierarchy for activity centres. The purpose of the hierarchy is to ensure optimum access to employment, services and facilities across the city to support the efficient provision of infrastructure and to optimise public investment.[64]
  1. [73]
    The TCP’s hierarchy is made up of:
  1. (a)
    the principal centre (CBD);
  1. (b)
    major centres;
  1. (c)
    district centres;
  1. (d)
    local centres;
  1. (e)
    neighbourhood centres; and
  1. (f)
    specialised centres.[65]
  1. [74]
    The ordinary meaning of “hierarchy” is a system of things in a graded order, in which members are ranked according to relative status or authority. Notwithstanding the structure of the above provision, the description of the respective centres that follows it makes it clear that specialised centres are different from the other centres. It was largely common ground amongst the town planning experts that the inclusion of specialised centres is not a common feature of planning schemes.
  1. [75]
    Although specialised centres are at the bottom of the list comprising the hierarchy, they cannot be said to be less important than those centres immediately above them, such as district, local or neighbourhood centres. Specialised centres are clearly within the network of activity centres in TCP. But because specialised centres necessarily have their own specific and limited function, their position at the bottom of the hierarchy does not, in my view, connote least importance. I accept Mater’s submission that the hierarchy in this context describes a grouping of activity centres, with the location of specialised centres at the bottom of the list reflecting the difficulty in locating this type of centre within a traditional hierarchy of centres.
  1. [76]
    I also accept Lauteret’s submission that the important point, from an interpretation point of view, is that the hierarchy provisions, whether at a generalised level in the Strategic Framework, or at a more specific level in a zone code, essentially have a traditional hierarchy, with an emphasis on retail, in mind. However the centres provisions clearly recognise the very important role that the specialised centres play within Townsville. The town planning experts all accepted the importance of the specialised centres.
  1. [77]
    The Strategic Plan provisions describing the principal centre (CBD)[66], the major centres[67], and the district centres[68], in particular, emphasise the breadth and mix of uses contemplated in those centres. There are also other provisions that emphasise that activity centres contain a mix of land uses and are to be multi-functional.[69]
  1. [78]
    Significantly, the provisions are explicit about where certain uses are, or are not, to be located or their preferred location. There are many examples of this. Any additional department store in Townsville is to be located in the principal centre (CBD) and not in any other centre.[70] Major strategic facilities such as a sports stadium are to be located adjacent to the city centre, and preferred locations are expressly identified.[71] A new department store is not to be located within any of the existing or future major centres.[72] Development of retail and office activities is to occur within the identified activity centres and mixed use areas. These activities are not to locate in an out-of-centre location, except where specifically intended in a particular zone or precinct.[73] Showrooms and retail-based hardware stores are to be located within identified activity centres or mixed use areas.[74] In the latter provisions, the TCP deals with activity centres and mixed use areas equally.
  1. [79]
    Thus, where the Strategic Plan seeks to discourage the establishment of an activity in a centre, it is explicit and prescriptive about that. This is important because there is no similar provision to the effect that hospitals and medical services must only be located in specialised centres. It would have been very simple for the drafters of the scheme to include a similar statement that new hospitals are not to be located outside of any existing medical precinct, but they did not do so. The council submits that the absence of any such expression of intent is telling. I agree with that submission. There is also no express statement of intent about where new hospital services are to be located.
  1. [80]
    In contrast to other centres, specialised centres incorporate major nodes of activity with a specific and limited function.[75] Specialised centres are intended to support and not to undermine other activity centres within the hierarchy.[76] Given the very different functions undertaken in specialised centres (described below), in my view, this provision is directed towards ensuring the retail components of specialised centres, if any, do not undermine other activity centres.
  1. [81]
    Specialised centres recognise the “special regional business roles” of Townsville Airport, Lavarack Barracks, the Port of Townsville, Domain Central, Fulham Road medical precinct, Bayswater Road medical precinct and James Cook University-Townsville Hospital precinct.[77] “These centres do not incorporate the breadth and depth of activities of other activity centres, but instead provide specific higher order, regional and national functions catering for a specific market or technological role and provide significant employment.”[78]
  1. [82]
    That the specialised centres have a specific and limited function is highlighted by the nature and function of each centre and the fact that four of the seven specialised centres (the airport, barracks, port and university) are government owned and do not fall within the regulatory jurisdiction of TCP at all.[79] Nonetheless, the scheme recognises the importance of their functions through its zoning.

What are the relevant locational requirements for hospital services and facilities, and are hospital services and facilities confined to specialised centres?

  1. [83]
    There are three specialised centres which are medical precincts: Fulham Road medical precinct, Bayswater Road medical precinct and James Cook University-Townsville Hospital precinct. Their designation recognises the fact that they already contain significant existing hospital and medical uses.
  1. [84]
    Mater’s facilities are located in two of those centres: the Fulham Road and Bayswater medical precincts. Before turning to the provisions for those specialised centres, it is useful to provide an overview of the existing hospital facilities in each of the specialised centres.
  1. [85]
    Mater’s Chief Executive Officer, Mr Wyvill, gave evidence of Mater’s operations.
  1. [86]
    Mater is a not-for-profit religious and charitable organisation. It operates a Catholic facility. It provides private hospital facilities and associated health services at Fulham Road (also known as Pimlico) and Bayswater Road (also known as Hyde Park). Mater operates full secondary and tertiary medical services at its hospitals including intensive care facilities at Fulham Road, and offers full radiology, pathology and pharmacy services.
  1. [87]
    At Fulham Road (Pimlico), Mater operates an acute medical and surgical facility with 167 overnight beds, eight operating theatres and an emergency department which operates from to 7am to 11pm. It includes units for cardiothoracic, endoscopy, children, sleep studies, coronary care and day procedures. It has a cardiac catheter laboratory, a level 6 intensive care unit (the highest level) and a medical patient care unit. It has a wellness centre for treatment of post-traumatic stress disorder. It has units for orthopaedic, neurosurgical and surgical patient care. It is a tertiary teaching hospital, in partnership with James Cook University, offering clinical placements.
  1. [88]
    At Bayswater (Hyde Park), Mater operates a further 34 overnight beds. Its services there include units for women, day surgery, renal and an operating room suite.
  1. [89]
    In addition, Mater’s facilities include relatives’ accommodation units at Fulham Road, and approximately 30 medical consulting suites for medical practitioners.
  1. [90]
    In summary, across both of its locations, Mater has:
  1. 201 licensed overnight hospital beds;
  1. more than 300 accredited visiting medical practitioners;
  1. more than 950 staff including resident medical officers, nursing, allied health, support and executive management; and
  1. more than 50 volunteers.
  1. [91]
    Mater’s facilities at Fulham Road were first established in 1945. It is now undertaking a program of modernisation, redevelopment and expansion. In 2017, Mater obtained a preliminary approval for redevelopment of its facilities. The redevelopment described in the “Mater Master Plan” is to occur in multiple stages. Ultimately it is intended to include new three, four and six storey buildings, additional medical suites for specialists, a four storey carpark, new surgical facilities, and maternity ward of 33 new beds. It increases surgical capacity to 12 operating theatres, as well as providing new day surgery facilities and bed capacity. It involves transferring maternity services from Bayswater Road to Fulham Road, and renovating Fulham Road facilities.
  1. [92]
    Works for the first stage, Stage 1(a), have commenced and are expected to be completed in 2020. That stage involves a new wing providing four additional operating theatres, radiology and day hospital. None of the other stages has commenced. Some stages are in the planning phases. Stage 4 (the final stage) will provide an additional 120 overnight beds. Completion of the Master Plan is estimated for 2045 but there is no reference to that timing in the development approval. By that time, Mater will operate a total of 354 overnight beds.
  1. [93]
    Mater is not the only operator of medical services in those precincts, but it is the major operator.
  1. [94]
    The Townsville hospital is located adjacent to James Cook University in the eponymous James Cook University-Townsville Hospital precinct, which is remote from the CBD.
  1. [95]
    The TCP recognises these existing hospital facilities in three specialised centre designations. I summarise the description of each in the Strategic Plan.
  1. [96]
    The Fulham Road Medical Precinct “will continue to be the focus of private acute medical services in the Townsville region. It accommodates medical facilities, including the hospital and medical centres catering for allied and specialist medical services. It also contains residential uses providing short-term accommodation particularly to meet demand generated by the primary medical uses in the precinct, and aged care and retirement living and respite care”[80] [emphasis added]. Thus the Fulham Road medical precinct includes, but is not confined to, Mater’s hospital and medical facilities.
  1. [97]
    The Bayswater Road medical precinct “accommodates a broad range of medical and associated service, and a mix of medical-oriented and low and medium density residential uses, in a vibrant, mixed use urban village with a strong sense of place and civic identity.”[81]
  1. [98]
    The James Cook University-Townsville Hospital precinct “evolves into a world-class knowledge community with a focus on the tropics and sustainability. The centre becomes a mixed use environment, integrating the existing institutions and forming an integral part of Townsville, with strong links to the CBD. … The land use mix, and scale of development in the James Cook University-Townsville Hospital centre reflects the role of the centre in the city. Its focus is as a knowledge community based on the university, hospital and research and technology activities. Other land uses which benefit and enhance the knowledge community occur, including employment, residential and retail.”[82]
  1. [99]
    The town planning expert for Mater, Mr Vann, relied upon those provisions to opine that hospitals are only specifically envisaged or anticipated in these three specialised centres, and that locating a hospital other than in one of the specialised centres which refers to a hospital necessarily involves non-compliance with the assessment benchmarks. Mater submitted to the same effect.
  1. [100]
    I cannot accept that construction. The three specialised centres (Fulham Road Medical Precinct, Bayswater Road medical precinct, and James Cook University-Townsville Hospital precinct) already have hospitals and medical facilities in them. The scheme recognises the existence of the current hospitals and medical facilities by their designation as identified specialised centres. Although Fulham Road medical precinct “will continue to be the focus of private acute medical services in the Townsville region” [emphasis added], the scheme does not, either expressly or impliedly, preclude hospitals outside that precinct or the other medical precincts.
  1. [101]
    The scheme does not (either in the Strategic Plan or other provisions) strictly prescribe locational requirements for new hospital uses, for example by mapping their intended location. Nor does it state that they cannot be located within a mixed use area or the mixed use zone, where the land is located.
  1. [102]
    With respect to the Fulham Road Medical Precinct, the Strategic Plan states that it “will continue to be the focus of private acute medical services in the Townsville region.” The ordinary meaning of “focus”, relevantly here, is a central point of attraction, attention or activity. Synonyms in this context might be the focal point or point of convergence. Describing the Fulham Road medical precinct as “the focus” does not, of itself, preclude the establishment of activities or facilities outside that precinct, so long as the precinct remains the focus, or central point, of those activities. Relevantly here, it does not exclude private acute medical services occurring outside that precinct.
  1. [103]
    Although hospitals and medical services are recognised and encouraged in those three precincts, there is nothing in the plain words of the relevant provisions that prevents hospitals and medical services being established elsewhere. It follows that establishing the proposed new hospital and its related medical services outside those precincts would not result in non-compliance with those provisions of TCP unless it prevented the Fulham Road medical precinct from continuing to be “the focus of private acute medical services in the Townsville region”.
  1. [104]
    That provision relates to the Fulham Road precinct as a whole, and is not confined to Mater’s operations. The “focus” relates to private acute medical services, and is not limited to Mater’s hospital. The elusive nature of the expression “the focus” renders it more difficult for Mater to contend that any plainly identified non-compliance with that provision arises.
  1. [105]
    It requires consideration of the evidence of what impact approval of the proposed development will have on the facilities in the precinct, which is dealt with below.
  1. [106]
    While “mixed use areas” are not included in the centres listed in the hierarchy, other provisions in the Strategic Framework and Mixed Use Zone Code support the construction that mixed uses areas are treated by the TCP as another form of centre. It was undisputed (and Mater accepted) that mixed use areas include land in the mixed use zone, in which part of the land is located.
  1. [107]
    In the Strategic Framework, the Specific Outcomes for activity centres includes a section on mixed use areas.[83] In that context, mixed use areas are included as activity centres. Mixed use areas “contain a mix of uses including medium density housing (where compatible with the local amenity), convenience retail and small-scale offices and showrooms, community and service industry uses which do not compromise the intended role or successful functioning of centres[84] [emphasis added].

Does location of the proposed development on the land compromise the intended role or successful functioning of centres?

  1. [108]
    Lautaret’s primary submission on this point is that the reference to not compromising the intended role or successful functioning of “centres” in this provision must be taken to be referring to centres in the hierarchy which have a retail function (that is, the other five centres in the hierarchy), and does not include specialised centres. Therefore the provision is not enlivened. In the alternative, it submits that even if “centres” here includes specialised centres, the proposed development does not compromise their intended role or functioning.
  1. [109]
    Mr Hughes QC in oral submissions agreed that “centres” in this provision means commercial centres. He confirmed that Mater did not rely upon this provision to allege non-compliance with the scheme. He submitted that there was no support in the words of that provision for a five storey hospital to be constructed in a mixed use zone. Mater points to the purpose of the centres hierarchy, which is to ensure optimum access to employment, services and facilities across the city, including public transport, to support the efficient provision of infrastructure and to optimise public investment.[85] Mater submits that this purpose applies to specialised centres as well, and not just retail centres.
  1. [110]
    In my view the preferable construction of “centres” in specific outcome 3.3.4.1(40) is that it is not intended to include specialised centres. Provisions of the Mixed Use Zone Code also support that construction.

The Mixed Use Zone Code

  1. [111]
    The Purpose of the Mixed Use Zone Code starts with a broad statement: “The purpose of the Mixed use zone code is to provide for a mixture of development that may include service industry, business, retail, residential, tourist accommodation and associated services and low impact industrial uses”[86] [emphasis added]. Thus the mixed use zone anticipates a very broad range of uses.
  1. [112]
    It then descends to specificity about which centres are not to be compromised: “The particular purpose of the code is to guide a range of activities … which do not compromise the principal centre (CBD), district or major centres[87] [emphasis added].
  1. [113]
    The purpose of the zone will be achieved through the overall outcomes. The overall outcomes confirm that the mandate not to compromise the functioning of centres is directed to protecting retail based centres: “Mixed use areas do not compromise the intended role or successful functioning of other centres. They do not contain full line supermarkets, discount department stores or department stores.”[88] [emphasis added].
  1. [114]
    The criteria for assessment in the Mixed Use Zone Code support this construction. Performance outcome PO5 states “The type and scale of retail and other commercial development does not compromise the intended role or successful functioning of other centres”[89] [emphasis added].
  1. [115]
    No acceptable outcome is nominated for that performance outcome. But the Editor’s Note states that applicants should have regard to Economic impact assessment planning scheme policy SC6.5 for guidance on how to demonstrate compliance with this performance outcome. That planning scheme policy states that an economic impact assessment report may be required to demonstrate compliance with TCP particularly for “significant in-centre or out-of-centre development of a commercial nature”. The planning scheme policy is directed towards retail impacts from commercial development and does not on its face apply to the proposed development of a hospital. It also supports the construction that mixed use areas are part of the network of centres.
  1. [116]
    It was accepted by all the town planners, including Mr Vann for Mater, that development on the land in the mixed use zone cannot be described as “out-of-centre development” because in the TCP mixed use areas are treated as centres and are part of the activity centres network.
  1. [117]
    The reference to “other” centres in the purpose of the mixed use zone and the criteria for assessment above are superfluous unless the drafter intended that a mixed use area be treated as a form of centre. These provisions are directed towards not compromising the intended role of other centres with a retail focus. They are not directed towards the proposed development of a hospital.
  1. [118]
    The overall outcomes of the Mixed Use Zone Code are specific or explicit about uses which are clearly not intended in the zone: full line supermarkets, discount department stores or department stores. Those uses, self-evidently, are uses which have the potential to compromise the “intended role or successful functioning” of the types of centres expressly referred to in the purpose. That is, the principal centre (CBD), district or major centres. It is telling that there is no equivalent “prohibition” on hospitals, nor any hint in the Mixed Use Zone Code or elsewhere that the mixed use zone may not contain a hospital. The TCP is directive about where retail may be located but it gives no equivalent direction with respect to a new hospital.
  1. [119]
    The overall outcomes also state:

“Unless otherwise stated for a particular precinct, the areas in this zone evolve to contain a wider mix of medium density residential uses as well as dining, convenience shops and speciality retailing, small-scale office uses, professional services and service and low impact industries.”[90]

  1. [120]
    A mixture of development, including but not limited to business and professional services, is expressly contemplated. There is no express, or implied, intent that precludes or discourages hospitals in the mixed use zone.
  1. [121]
    In conclusion, when construing the statement in the Strategic Framework that mixed use areas “contain a mix of uses … which do not compromise the intended role or successful functioning of centres”[91], the better argument is that the reference to centres there is a reference to retail based centres. It does not apply to the specialised centres.
  1. [122]
    If I am wrong about that and “centres” in specific outcome s 3.3.4.1(40) includes specialised centres, it is necessary to consider what their intended role or functioning is.
  1. [123]
    The intended role of Fulham Road medical precinct is to be the focus of private acute medical services in the Townsville region, accommodating medical facilities, including the hospital and medical centres catering for allied and specialist medical services, and residential uses, aged care, retirement living and respite care.
  1. [124]
    The intended role of Bayswater Road medical precinct is to accommodate a broad range of medical and associated services, and a mix of medical-oriented and low and medium density residential uses, in a vibrant, mixed use urban village with a strong sense of place and civic identity.
  1. [125]
    The intended role of James Cook University-Townsville Hospital precinct is to evolve into a world-class knowledge community with a focus on the tropics and sustainability.
  1. [126]
    When construing the meaning of “compromise” in the context of desired environment outcomes in the former planning legislation[92] this court said that for development to compromise “it must be of such a nature it will clearly threaten, imperil or endanger the planning outcome which is sought”.[93] Compromise connotes more than mere impact. By analogy, some guidance may be found in the statements that centres (including specialised centres) are intended to support and not “undermine” other activity centres within the hierarchy.[94]
  1. [127]
    There is no development metric, such as gross floor area, height or otherwise, which suggests that the proposed development is unacceptable in the mixed use area and in the mixed use zone. Mater does not point to any such indicator that would suggest that the proposed development would compromise the hierarchy of centres.
  1. [128]
    The Strategic Framework actively encourages competition, promoting a broad range of uses at activity centre, “appropriate to the identified hierarchy, to support vibrancy, community life and health and economic development and competition”.[95] While the Strategic Framework suggests that much of the growth anticipated will be accommodated in key productive precincts including the James Cook University-Townsville Hospital precinct,[96] it does not state that all of the growth will occur at that facility. This should be read with statement that the network of activity centres will accommodate “the majority” (but not all) of future employment, community and commercial activities. Thus mixed use areas and the mixed use zone play a role in that network.[97] Similarly, while Fulham Road medical precinct is to continue as “the focus” of private acute medical services, it is not the sole provider nor is it intended to be.[98]

Specialised Centre Zone Code

  1. [129]
    Mater also relies upon parts of the purpose and overall outcomes of the Specialised Centre Zone Code to contend that the development is inappropriate. However, that code does not apply to development on the land. The Specialised Centre Zone Code applies to development where the code is identified as applicable in a table of assessment,[99] which is not the case here. An Editor’s Note in the Specialised Centre Zone Code[100] states that while the scheme does not regulate land within some of these sites, this code is intended to give direction to development “within or in the vicinity of” the nominated sites. The subject land is neither within, nor in the vicinity of, the sites.
  1. [130]
    The Note corresponds with the purpose of that code, which is to provide for one or more specialised uses. This can be contrasted with the mix of uses contemplated in other centres. The particular purpose of the Specialised Centre Zone Code is to recognise the role and function of each of the specialised centres and guide development within each centre, and to protect each centre from encroachment by development which may impact on that role and function.[101] In my view, the protection from “encroachment” has in mind development within or in the vicinity of the centre intruding into, invading or usurping, the centre’s territory and role. This construction is supported by other overall outcomes, referred to below.
  1. [131]
    None of these provisions uses language that is intended to preclude the possibility of the development of a private hospital elsewhere in the city. The purpose of the Specialised Centre Zone Code does not contain any express statement of intention to protect specialised centres from competition elsewhere. The code deals with what happens on land within, and in the vicinity of, the specialised centres.
  1. [132]
    The purpose of the code will be achieved through its overall outcomes.[102]
  1. [133]
    Overall outcome (a) states: “The zone accommodates large public, commercial or institutional facilities which are significant to the economic and social well-being of Townsville but are not appropriately included in other zones. These centres include Domain Central, the James Cook University-Townsville Hospital precinct, Lavarack Barracks, Townsville Airport, Port of Townsville and major medical precincts.”[103] [emphasis added].
  1. [134]
    The use of the adjectives “large” and “major” here also supports the construction that a minor or small hospital or medical facilities may be established outside the three medical related precincts.
  1. [135]
    Overall outcome (d) states “development supports and is compatible with the primary focus for the centre. The specialised centre retains its dominant function and new development does not prejudice its ongoing operation or significantly impact on the amenity of nearby sensitive uses”[104] [emphasis added].
  1. [136]
    Overall outcome (f) contemplates that “specialised centres grow in a consolidated way that makes efficient use of the zoned area. Development near the boundaries of specialised centres is located and designed to minimise impacts on sensitive land uses in other zones.”[105]
  1. [137]
    Overall outcome (g) states “development surrounding a specialised centre does not impact on the continued functioning and expansion of the centre for its intended primary purpose”[106] [emphasis added].
  1. [138]
    This is reinforced by the performance outcomes for both the Fulham Road medical precinct[107] and the Bayswater Road medical precinct.[108]
  1. [139]
    In my view, these provisions are directed to development within, or in the vicinity of, the specialised centre in question. Therefore they do not apply to the proposed development. Nonetheless, for completeness I have set out some of the relevant provisions to the extent they could conceivably be relevant when construing the TCP as a whole.
  1. [140]
    There are additional overall outcomes for particular precincts. The particular overall outcomes for the Fulham Road medical precinct echo those in the Strategic Plan: “(a) the precinct continues to be the focus for private acute medical services in the Townsville region; (b) the continued efficient and effective operation of the hospital is protected; (c) the precinct accommodates medical centres, medical officers and health care services, research and technology industries, accommodation and other activities that support or are otherwise allied to the hospital activities; (d) the hospital has the highest scale and intensity of any use within the precinct.”[109] [emphasis added].
  1. [141]
    The particular overall outcomes for the Bayswater Road medical precinct include “(a) the continued efficient and effective operation of the hospital is protected; (b) the hospital has the highest scale and intensity of any use within the precinct; (c) the precinct accommodates medical centres, medical officers and health care services, research and technology industries, accommodation and other activities that support or are otherwise allied to the hospital activities.”[110]
  1. [142]
    There are also particular overall outcomes for the James Cook University-Townsville Hospital precinct. However, the appeal was not conducted on the basis that these were relevant.
  1. [143]
    Mater’s case focussed on the impacts of the proposed development on Mater’s facilities in the Fulham Road medical precinct. That is unsurprising given that Fulham Road houses most of Mater’s facilities. In the Bayswater Road medical precinct, Mater operates only 34 overnight beds (one third more than is proposed by Lautaret in its new hospital) and Mater’s own redevelopment plans involve transferring its maternity services from Bayswater Road to Fulham Road.
  1. [144]
    Reference to the Fulham Road medical precinct continuing to be “the focus” for private acute medical services admits of the possibility of other facilities elsewhere. The existence of two other medical precincts reinforces this construction.
  1. [145]
    If the primacy of the Fulham Road medical precinct as the focus of “private acute medical services” were threatened, that would constitute non-compliance with this assessment benchmark. However the evidence does not establish that. For the reasons explained below, I find that the proposed development will not prevent or compromise the achievement of those outcomes.
  1. [146]
    “Acute medical services” is not defined. The uses Hospital and Health Care Services are separately defined.[111]
  1. [147]
    Mater points to the fact that a hospital is code assessable in the Fulham Road medical precinct but impact assessable in the mixed use zone, in support of its argument that hospitals are only contemplated in the three specialised centres which have a medical focus. But the mere fact that a hospital is impact assessable does not mean it cannot be located in the mixed use zone. It simply must be assessed against the whole of the planning scheme. The TCP does not designate a hospital in the mixed use zone as impact inconsistent development, or prohibited development.

Will Fulham Road medical precinct continue to be the focus of private acute medical services in the Townsville region? Is the continued efficient and effective operation of the hospital protected? Will the proposed development compromise the intended role or successful functioning of centres (relevantly Fulham Road medical precinct and Bayswater Road medical precinct)?[112]

  1. [148]
    These questions are interrelated. The nature of the services proposed to be provided in the new hospital, and their impact on the range of services provided by the Mater, and on the relevant centres, is considered below.
  1. [149]
    An assessment benchmark does not include a matter of a person’s circumstances, financial or otherwise. That means that when considering the evidence of the impact of the proposed development on Mater’s facilities, matters of private economics, such as the mere threat of competition or the impact on Mater’s profitability, are not of themselves relevant.
  1. [150]
    Unfortunately, a good deal of the evidence of the financial and commercial experts, Mr Henderson on behalf of Lautaret and Mr Palassis on behalf of Mater, was directed to those issues. I repeat and rely upon my observations below in the section on “need”, including the authorities there referred to. Evidence of financial impacts on Mater is relevant only insofar as it relates to the questions the planning scheme poses, if at all. Those questions are directed to impacts on health services, not matters of private economics or purely financial impacts. For example, whether there will be a reduction in private acute medical services, whether Fulham Road medical precinct will no longer be the focus of those services, and whether its intended role or successful functioning will be compromised. One must keep returning to the actual words of the planning scheme.
  1. [151]
    Some of the evidence of the hospital demand experts, Dr Hardes for Mater and Mr Henderson for Lautaret, was relevant to these questions. Even if there is a financial impact on the Mater, whether private acute medical services or the operation of the hospital will be adversely affected, if at all, will depend on a number of factors. For example, the extent of growth in, and demand for, private hospital services in that area which might mitigate any loss of revenue.
  1. [152]
    I have considered all of the evidence but will refer only to that which is relevant, or particularly emphasised in submissions. So far as possible, I avoid express reference to evidence which was confidential or the subject of Fielder Gillespie orders.
  1. [153]
    It is important to bear in mind the relatively small scale and limited specialisation of the proposed new hospital: only 22 overnight beds, four operating theatres initially, units for intensive, inpatient and coronary care, a cardiac catheter laboratory and cardiology unit, and only four initial medical specialities (urology, maxillofacial, interventionist cardiology and orthopaedics).
  1. [154]
    This can be contrasted with the scale of Mater’s current operations across both its locations, the majority of which are concentrated at Fulham Road: 201 overnight beds, approximately 1,300 staff or volunteers; eight operating theatres with an additional four under construction; the range of other facilities on offer; and a significantly greater annual turnover as disclosed in its financial reports.
  1. [155]
    In terms of overnight bed numbers, the new 22 bed hospital comprises only 10% of Mater’s total private overnight beds. After completion of Stage 4 of Mater’s redevelopment, it will comprise only 6% of Mater’s total overnight beds. On Mr Henderson’s evidence, the new 22 bed hospital represents only about 2% of total public and private hospital beds in Townsville (which number over 1,000); 10% of all private hospital beds and 3.5% of all private/chargeable private separations in its third year of operation.
  1. [156]
    Notwithstanding the modest scale and limited focus of the proposed development, Mater submits that its approval will not only have an impact, but “a devastating impact upon the capacity of Mater to provide a full range of private hospital, surgical, medical and allied treatment and facilities for the benefit of the Townsville region as a whole.”[113] It further submits that the proposed development would adversely affect the continued operation, and “threaten” the approved redevelopment, of Mater’s facilities.
  1. [157]
    Mater submits that its ongoing capacity to provide a full range of secondary and tertiary hospital services, including intensive care, for the Townsville regional community is a matter of public interest and if the proposed development is approved, those services will be reduced.
  1. [158]
    The hospital demand experts, Dr Hardes for Mater and Mr Henderson on behalf of Lautaret, agreed broadly on the data but disagreed on the conclusions to be drawn from it. A number of matters were agreed. Although Mater is the only private provider of overnight hospital services in Townsville, many private patients declare their private health insurance and elect to be treated as private patients at the public hospital, the Townsville Hospital, rather than at the Mater. It is not uncommon in regional areas to see larger numbers of private patients attending public hospitals for surgical and medical treatment. However the proportion of private patients in Townsville who utilise the public hospital is very high. It is substantially (about 43%) greater than the State average.
  1. [159]
    Mr Henderson said that overall private demand was present, which suggested that other consumer preferences were at play in the very high number of private patients choosing to be treated at the public hospital rather than the Mater’s facilities. He said that there may be factors unique to the Townsville market which explained the high number, including religion (70% of the population identifying as non-Catholic), or a perceived lack of amenity at the Mater’s facilities. He said that, either way, the very high utilisation of public hospital services by private patients suggests that the Townsville population could benefit from another choice in provider.
  1. [160]
    Thus, the market for hospital services for private patients in Townsville is, to an extent, shared between those facilities, with the greater level of utilisation of private hospital services actually occurring at the public Townsville hospital. The Townsville hospital has experienced a very high level of growth in recent years. It has completed a major redevelopment program and has excellent facilities that are both modern and attractive. Private chargeable admissions to it have also increased in recent years at a rate greater than the State average. At the same time that the growth rates of private/chargeable patients in the public hospital have been growing, Mater’s have seen a small decline.
  1. [161]
    In Mr Henderson’s opinion, that suggests that there is a local choice issue at play for those patients. That is, private patients are choosing to go to the Townsville hospital rather than the Mater’s facilities. Dr Hardes was unsure whether this reflected local choice or an emergence of the Townsville hospital as a competitor for private income. Public hospitals are emerging generally as strong competitors for private hospitals by attracting private patients. Mr Henderson said that Townsville Hospital is at or near capacity with long waiting lists.
  1. [162]
    Both experts, including Dr Hardes, project continuing organic growth in Townsville overnight admissions, as result of population growth, the ageing population and clinical trends. The Townsville hospital also projects significant growth in the demand for private hospital overnight beds. If the Mater is unable to meet the projected demand, or patients choose not to go to the Mater, patients requiring treatment would be forced to either access private services outside Townsville, or wait to access private services locally, if non-urgent, or access services at the Townsville hospital.
  1. [163]
    All of those options are undesirable. But having large numbers of private patients electing to be treated privately in a public hospital is particularly undesirable, and not in the public interest, for a number of reasons. It places a greater burden on public facilities, it causes the system to incur a substantial loss (because health funds reimburse public hospitals at a fraction of the rate paid to private hospitals) and it increases waiting times and lists. That means fewer essential services available for uninsured patients, which is not in the interests of society as a whole. Both Dr Hardes and Mr Henderson agreed that it was preferable for private overnight hospital services to be provided by the private sector, rather than the public hospital, where this is possible.
  1. [164]
    Many of the public hospital’s private patients are admitted after presenting to its emergency department. Mater has recently opened a new emergency department. On Mr Henderson’s evidence, even with its more limited opening hours and fee based service, Mater’s emergency department is likely to increase the number of private admissions to it.
  1. [165]
    Both Dr Hardes and Mr Henderson agreed that there will be continued private growth in the Townsville market. They differed in where that growth could, or was likely to, be accommodated.
  1. [166]
    Dr Hardes accepted the proposition that there is community benefit in providing choice and competition in the private hospital market, so long as that was a net benefit. In that regard, he was not suggesting that the Mater “would go broke or anything like that”, but said if the choice resulted in a failure or an inability of the Mater to carry out its capital works program, then he was not sure what the net benefit would be.
  1. [167]
    Dr Hardes’ evidence was that, with its current capacity of 201 beds, Mater alone can accommodate the total projected private overnight demand beyond 2026-7 without any enhancement. He accepted that the projected increase in private hospital activity over the next decade will require the equivalent of another 100 beds to accommodate it. However he said that the bulk of those beds already existed as unoccupied beds at the Mater.
  1. [168]
    Mr Henderson’s evidence was that, by any measure and methodology to assess need, there is a requirement for an alternative overnight private hospital provider in Townsville to provide competition and choice for doctors, patients and health funds. He said there was a need for 80-100 additional private hospital beds in Townsville by 2020-1, or at the minimum by 2026-7. He said that the data clearly demonstrates that private patients, to a significant degree, are choosing not to be treated at Mater’s hospital and instead are electing to be treated at the Townsville public hospital, at a rate well above State averages. The data is likely to be conservative as it does not capture those private patients who do not declare their private health insurance but simply elect to be treated as a public patient at the public hospital. (Dr Hardes agreed that the number of private patients who attended the public hospital but did not declare their private health insurance was unknown.) They are not included in the figures for utilisation of the public hospital at all.
  1. [169]
    In any event, on Dr Hardes’ own analysis, by 2026-7 a further 288 private overnight hospital beds will be required to accommodate projected demand. That is 87 more beds than Mater has available. Mr Henderson pointed to the fact that Dr Hardes had provided three conflicting opinions in different reports over the last 12 to 18 months. Mr Henderson was emphatic that a competitor to Mater in the Townsville market (albeit small scale) would be beneficial to all stakeholders, including doctors, patients and health funds. He said that by the time the proposed development is commissioned, it can reasonably be concluded that there will be a shortfall of 80-100 beds. At only 22 beds, the proposed development will go only part way to meeting that shortfall. Mater is undertaking a $90M redevelopment including an additional 120 beds to address that shortfall in the market. In his view, there is still scope for Mater to undertake this development and the proposed development would not materially impact this.
  1. [170]
    In submissions, Mater noted that the industry benchmark, or aspirational target, for occupancy of overnight beds is 80 - 85% but Mater is currently unable to achieve 60% occupancy. Mater’s facilities have significant vacancy rates. On any given night, there are in the order of (on Dr Hardes’ evidence) 80 - 90 beds or (on Mr Henderson’s evidence) 70 beds, vacant in Mater’s private wards. Mater relies upon this in support of its argument that there is no need for the proposed development, (dealt with below in the section on “need”). However Mr Henderson points out that the fact that Mater has not been able to fill its beds, or capture its expected share of the market, and that many private patients have, in effect, voted with their feet and elected to be treated as private patients at the public hospital, should not be a consideration in allowing a small new private hospital to enter the market.
  1. [171]
    Dr Hardes’ view was that, broadly speaking, the Townsville market was adequately served. Both experts agreed that the four specialisations offered by the new hospital are currently provided for in Townsville.
  1. [172]
    On the evidence of Mr Palassis and Dr Hardes, most private patients who enter Townsville hospital for treatment are unlikely to move to a private hospital to secure any necessary treatment. They may go to the public hospital because they suffer an acute episode, eg. heart attack or stroke, or because the Townsville hospital has a reputation for better, more modern facilities, eg. in obstetrics. Therefore Mater argues that the impact of any additional private hospital will be felt most keenly and substantially on it. In the context of the 22 new private beds proposed, Dr Hardes considered the likelihood of relocating work from the public hospital to the Mater and said that something between 5 and 10 beds per day associated with the Mater’s emergency department, and other traditional private hospital surgical activity, would be quite a good redistribution.
  1. [173]
    Dr Hardes said that if there is a movement of specialists from the Mater to the proposed development, it will not necessarily increase utilisation rates at private hospitals, but it may simply redistribute them. The patients for the new hospital will be mainly sourced from the Mater hospitals, with a consequential negative impact. He said that this may result in flow-on impacts at the Mater, potentially compromising their upgrading and modernisation plans.
  1. [174]
    However Mr Henderson’s evidence was that some private patients currently being treated in the Townsville hospital are available to move to the proposed development. He considered that there would be two significant changes in the Townsville market which would mean that private patients in the public hospital would be accessible to private operators and would likely increase occupancy at the Mater.
  1. [175]
    First, Mater had recently opened a private emergency department which, in his experience, would attract some of those private patients that are currently being admitted to public hospitals. 70% of the beds occupied in the public hospital by private patients are admitted through the emergency department. Even if Mater captured only 50% of that market by its new emergency department, there would be a daily average of about 20 patients available to the Mater. In that regard, Mr Henderson drew upon his own experience as a CEO of hospitals with a private emergency department.
  1. [176]
    Second, medical specialists would be shareholders in the proposed new hospital, and would have a financial incentive to take referrals from private patients at the public hospital. Specialists earn a significantly higher income from private practice compared to the relatively low sessional rates offered by public hospitals. Therefore the ownership and management of the new private hospital by the medical specialists who will operate at it will be a significant factor in attracting patients and specialists to that facility, including from the Townsville hospital.
  1. [177]
    In Mr Henderson’s opinion, approval of the proposed development will partially reverse the trend of private patients being treated at the Townsville hospital, which will be a community benefit.
  1. [178]
    He also said that the overall impact on Mater of approval of the proposed development will be insignificant. Although the new 22 bed hospital will compete with Mater in the specialities of orthopaedics and cardiology, Mater has more than enough options to mitigate any impacts. He said that, based on Mater’s self-proclaimed strong financial position, it was inconceivable that a 22 bed hospital could render a 200 bed hospital non-viable. I accept that opinion. It was supported by other evidence showing that while the specialists that would practise at the proposed new hospital presently make a contribution financially to the Mater, the Mater still generates substantial revenue from other doctors in those fields, and can be expected to do so into the future.
  1. [179]
    Mr Henderson also considered that there were many avenues open to Mater to improve its market position, which he identified. Such avenues should assist in attracting patients from the Townsville hospital and offset any impact from approval of the proposed development. Finally, he opined that approval of the proposed development would add choice, competition and convenience to the market, which would in turn benefit the community. In cross examination, Mr Henderson accepted that for every patient lost from Mater to the proposed development, there would be a loss of revenue to Mater, but he explained that this would be set off against organic growth, which both experts agreed was occurring, and the additional admissions generated by Mater’s emergency department.
  1. [180]
    To the extent that Dr Hardes and Mr Henderson’s evidence differed about the impacts of approval of the proposed development on Mater’s facilities, ultimately, I found Mr Henderson’s evidence more persuasive than Dr Hardes.
  1. [181]
    There was also evidence from the financial and commercial experts, Mr Palassis for Mater and Mr Henderson for Lautaret. To the extent that evidence dealt only with issues of financial impact, it was of limited utility and was not of itself sufficient to establish non-compliance with the assessment benchmarks. Where the evidence was relevant, and to the extent that the evidence of the experts differed, I preferred the evidence of Mr Henderson to that of Mr Palassis for the reasons below.
  1. [182]
    Mr Palassis’s evidence was that Mater would suffer significant loss of market share, expected to translate into significant loss of revenue, if the proposed development were approved. It is difficult to see how this could be, given that the 22 new beds proposed would comprise only 2% of total public and private hospital beds in Townsville and 10% of all private hospital beds. Nonetheless Mr Palassis’s “preliminary assessment” was that Mater could be expected to experience financial distress as a result of that impact. He said that there are fixed costs associated with the provision of general surgical and medical services and that Mater also provides many less profitable hospital services which are clearly beneficial to the community. The proposed development will provide some limited surgical services, but no general surgery or any medical services or non-acute services, intensive care unit or emergency department. Mr Palassis’s evidence was that the loss of marginal private patient revenue from Mater’s hospitals to the proposed development would have a disproportionate effect upon the operation of Mater’s hospitals. He said that the loss of income generated at Mater by Dr McEwen alone, one of the proponents of the proposed development, will be significant.
  1. [183]
    Whilst Mr Palassis discounted the likelihood of private patients currently in the public system being retained by the private system, he focused upon such patients being in the public system by way of economic choice. But there was much evidence that a private patient may choose the public hospital for reasons other than financial reasons. Patients may choose to be treated there because of qualitative perceptions about the standard of care or amenities. Dr Hardes conceded that the Townsville hospital’s facilities are excellent, and superior in general to what the Mater’s private hospital has able to offer. Dr McEwen, one of the proponents of the new 22 bed hospital, also gave evidence that a lot of privately insured patients go to the public hospital in Townsville, and stay there, because it is a nicer hospital than the Mater. Mr Palassis was dismissive of those qualitative considerations.
  1. [184]
    Mr Palassis also initially said that it was not necessary to consider competition and other public policy considerations. He explicitly excluded from his analysis the community benefits arising from increasing competition in the Townsville private hospital market. Mr Palassis later conceded in cross examination that qualitative considerations that affect whether a patient will seek access to a particular hospital include the extent and quality of its facilities, whether a patient would be provided with a single room or not, the expected standard of care, meals, and the reputation of the hospital itself. His analysis was diminished and his evidence less persuasive because of his failure to take those matters into account.
  1. [185]
    In contrast, Mr Henderson did take into account qualitative considerations. He considered that if a thorough assessment of the full impact was to be undertaken, it was inappropriate to look at just one entity or one part of the system. The whole system should be considered overall. I prefer his approach to that of Mr Palassis.
  1. [186]
    Mr Palassis’s calculations of revenue generation were based on the physical infrastructure provided by the proposed development. He erroneously assumed that the number of operating theatres included in the proposed development was five, not four as stated on the plans of development. As Mr Henderson pointed out, removal of this incorrect assumption had the effect of reducing significantly Mr Palassis’s estimate of the number of procedures that could be performed or the through-put of the new hospital. Mr Palassis conceded that the number of theatres used in his projections was very relevant to the totals he obtained. His assessment of the proposed development’s financial impact on Mater was based on the number of procedures projected to occur in the operating theatres multiplied by the average cost of the procedure.
  1. [187]
    Mr Palassis erroneously included in the average cost of a surgical procedure a number of procedures not proposed to be performed at the new hospital. The figure adopted by him as an average cost per separation was acknowledged by him to include prostheses. Mr Henderson said that this was not the correct approach and, ultimately, even Mr Palassis agreed that an approach of excluding the cost of prostheses from revenue calculations was open and up to the accounting policy of each organisation. Mr Palassis, under cross-examination, agreed that the $ figure he had adopted as the average charge for each separation, would have to be reduced if the prostheses charge were taken out.
  1. [188]
    Mr Palassis did not give appropriate weight to the benefit that would flow to the Mater from the recent provision of its emergency department. Mr Henderson’s evidence was that there will be a very substantial increase in income from operating a private emergency department. His evidence was supported by Mater’s own CEO, Mr Wyvill, who said that the Mater’s emergency department would generate significant revenue each year. It was also supported by other evidence that 70% of private patients at the Townsville hospital had been admitted via its emergency department. Thus the Mater’s new emergency department has the potential to be a significant generator of additional private admissions to it.
  1. [189]
    Mr Palassis disregarded concerns about operational issues at Mater, raised by Mr Henderson in the joint expert report on the basis of other documents. Those concerns included operating theatres having process flow issues, low utilisation of available time and allocated schedules, the Hyde Park facility not supporting new building codes, inefficiencies in the day surgery admissions unit, a lack of stakeholder engagement, sub-standard patient rooms including poor bathroom facilities, second rate operating theatre equipment, qualified and experienced midwives leaving, a poor standard of patient facilities at Hyde Park, a deterioration in market opinion about Mater’s surgical group, difficulties accessing operating theatres for additional lists and beds, and a tired facility appearance compared to the Townsville hospital.
  1. [190]
    Mr Henderson’s evidence was that there were significant operational issues at the Mater inhibiting its performance. However those matters were disregarded by Mr Palassis. He conceded that he had not commented upon those matters nor had he reviewed recommendations made by others to Mater about them. In my view, that also diminishes the persuasiveness of Mr Palassis’s evidence. At times, Mr Palassis’s responses on these issues were defensive and he would not make reasonable concessions.
  1. [191]
    In summary, the approach of Mr Palassis in calculating both the expected activity to be undertaken at the proposed development and the revenue that such activity would generate was flawed. To the extent his evidence on these issues differed from that of Mr Henderson, I prefer Mr Henderson’s. Those issues also affected Mr Palassis’s conclusions about percentage market share that the proposed development would capture, resulting in an overstatement.
  1. [192]
    In addition, Mr Palassis changed position from the joint expert report, as compared to his statement of evidence. In the joint expert report, Mr Palassis consistently said that it was not possible to determine the impact on the financial position of Mater from the approval of the proposed development, without detailed financial modelling and analysis being prepared. The financial model sought by Mr Palassis was not completed because Mater did not provide the necessary information to him prior to the joint expert meetings, nor after the joint expert report was produced, despite his request. By the hearing, he had still not been provided with the necessary information. Despite the view he expressed in the joint expert report, in his statement of evidence Mr Palassis said that financial analysis of Mater demonstrates an inability to withstand activities lost to the proposed development and will cause Mater to enter financial distress. He defended this change of position, saying that the view he now expressed was a “preliminary analysis”.
  1. [193]
    The unexplained shift in position by Mr Palassis combined with failure of Mater to disclose the information requested by its expert weighs against the opinions expressed by Mr Palassis on this issue.
  1. [194]
    Mr Henderson gave due weight to Mater’s financial position as described in its own financial reports. In particular, he took into account the information disclosed about its revenue, total assets, excess of cash and cash equivalents and limited borrowings. He used that information to form the opinion that Mater would not enter financial distress should the proposed development be approved. That view was consistent with statements in Mater’s expression of interest for the private university hospital in May 2016. In that it represented that it had strong revenue, was prudently run, was in a healthy position with its debt ratio and had an excellent credit history. In considering Mater’s capacity to withstand financial impacts, it is also relevant that, compared to “for profit” competitors, Mater does not pay either corporate income tax nor payroll tax. It also receives concessions with respect to fringe benefits tax.
  1. [195]
    Mater submits that that total loss of revenue will be “devastating” and would jeopardise its redevelopment plans. It relies upon a direct comparison between the gross revenue figures of Mater and the proposed gross revenue of the proposed development, and submits that this will have a devastating impact on Mater’s revenue and therefore its capacity to maintain the full range of hospital services which it provides. Mater uses the proceeds of the more lucrative surgical hospital revenue to subsidise and sustain less profitable or unprofitable services for the benefit of the community. It argues that any loss of those services supplied by Mater will not be made good by the proposed development, because Lautaret will provide only a limited range of services involving only the most profitable specialities.
  1. [196]
    For the reasons set out above, I prefer the evidence of Mr Henderson in respect of these issues. Even assuming that Mater initially suffers some loss of revenue, the evidence does not establish that it will have a significant impact on its delivery of services. In my view, there are no financial or commercial impacts that would arise from approval of the proposed development that would call for the proposed development to be refused.
  1. [197]
    For the proposed development to “compromise” of the role and successful operation of Mater’s facilities requires more than mere competitive impact.
  1. [198]
    Even on the evidence of Mater’s own CEO, Mr Wyvill, no such compromise will occur. At worst, there is no more than the possibility of some reduction in services. Any reduction (if it did occur) would be in the short to medium term only, and those services would be available elsewhere, either at the proposed development or at the Townsville Hospital. Even if such impacts were established, they would be outweighed by the other considerable benefits associated with the proposed development.
  1. [199]
    As a preliminary matter, Mr Wyvill’s written statement must be treated with some caution because he conceded in cross examination that large sections of it had been written by Mater’s solicitors, and other parts contained matters about which he had no independent knowledge.
  1. [200]
    Mr Wyvill’s evidence about Mater’s redevelopment plans or intentions must also be weighed against the fact that Mater has only a preliminary approval for its redevelopment. That approval varies the TCP in limited relevant respects. It makes Mater’s hospital development at Fulham Road code assessable. Mater’s approved plans are, at best, conceptual. Although staging is contemplated, the approval does not identify any sequence, nor the timing of delivery. In those circumstances, it is difficult to see how the Mater’s future development plans would be compromised or cut across by approval of the proposed development.
  1. [201]
    Mr Wyvill said that should the proposed development proceed, Mater’s redevelopment is placed in serious doubt. But he later accepted that approval of the proposed development does not place Stage 1 in jeopardy. Stage 1(a) of that proposal, the new entrance, radiology, day hospital and four additional operating theatres is already under way and is to be commissioned in March 2020. Its cost is approximately $52M. Stage 2 comprises a medical centre and multi-storey carpark (expected to be commissioned March 2020 but not yet commenced construction). Its cost is approximately $34M. However its cost will be offset by sales revenue from the sale of strata titled lots in the medical centre. Stage 1(b) is a new maternity wing, and relocation of Mater’s obstetric services from Bayswater Road (Hyde Park) to Fulham Road (Pimlico). It is only in the planning stage, and is to be planned within the next three to five years at a cost of $12M. It will happen as Mater can fund it. The directors are still to “sign off” on it. Mater also intended a major internal refurbishment of its Fulham Road (Pimlico) hospital during 2019/2020, for which planning and design had commenced, with a forecast cost of $13M.
  1. [202]
    Mr Wyvill’s evidence was that Mater intends to fund its redevelopment plans from a variety of sources including equity reserves, a Commonwealth grant, an asset restructure, an approved debt facility for the initial stages, and ongoing annual surpluses forecast from organic growth.
  1. [203]
    Although Mr Wyvill said that the Mater Master Plan had a life of 30 years and that stage 4 was estimated for completion by 2045, he later conceded that he had not read the Master Plan and that there was no reference to 30 years in it.
  1. [204]
    Certain services provided by the Mater, such as procedural or surgical, generate far more revenue, which props up or subsidises its less remunerative services.
  1. [205]
    Mr Wyvill’s evidence about any reduction in health services was qualified. It did not establish that Fulham Road Medical Precinct would not continue to be the focus of private acute medical services in the Townsville region, nor that the hospital there would not continue its efficient and effective operation, nor that the intended role or successful functioning of Fulham Road medical precinct and Bayswater Road medical precinct would be compromised.
  1. [206]
    He said that “in the short to medium term … Mater will likely have to curtail its Master Plan significantly and possibly reduce or withdraw from the provision of expensive tertiary level services” [emphasis added];[114] that Mater “may not” be in a position to maintain its current annual capital allocation or service the debt associated with “planned” redevelopment stages;[115] that the loss of revenue will lead to “at least some diminishment of the level of service, and perhaps the services currently provided by Mater”[116] and that Mater “may not be able” to progress existing development approvals.[117]
  1. [207]
    Mr Wyvill made some important concessions: that even if services were limited or curtailed, they were services that could be provided from the public hospital;[118] and that in the longer term, the outcome would be different.
  1. [208]
    Significantly, in his statement of evidence Mr Wyvill volunteered, when referring to the loss of revenue from surgical procedures, that “It is unlikely that Mater will cease to provide medical and health services at its facilities in Townsville as a result of such losses”.[119] That was reinforced in cross examination.
  1. [209]
    Although Mr Wyvill’s statement did not refer to it, Mater’s proposed redevelopment envisages income from commercial tenancy arrangements. The cost of Stage 2 will be offset by sales revenue which he did not identify.
  1. [210]
    Mater’s position in the appeal (including Mr Wyvill’s evidence of its financial position, its submission to council and its position on hospital demand) was at odds with two other documents: Mater’s expression of interest to develop a proposed 100 bed university private hospital dated May 2016; and a report Mater commissioned from Dr Hardes reviewing future private hospital opportunities dated July 2017. Without referring to their detail, both documents support the position that there is demand for another private hospital in Townsville.

Conclusion on whether Fulham Road medical precinct “will continue to be the focus of private acute medical services in the Townsville region” and whether the proposed development will “compromise the intended role or successful functioning of centres”?

  1. [211]
    I accept the opinion expressed by Mr Buckley, Lauteret’s town planning expert, that, by scale, componentry and critical operational mass, the Mater facilities will remain the focus of private acute medical services in the region.
  1. [212]
    Even if Mater’s worst fears in terms of loss of patients came to fruition, the remaining volume of patients would materially exceed those at the proposed new hospital. In terms of scale, the proposed development is dwarfed by the Mater’s current facilities and proposed Stage 4 of Mater’s redevelopment plans alone.
  1. [213]
    Mater’s submission that the proposed development will have a “devastating” impact upon the capacity of Mater to provide a full range of private hospital, surgical, medical and allied treatment and facilities for the benefit of the Townsville region as a whole, is not made out on the evidence.
  1. [214]
    I am satisfied on the evidence as a whole that the establishment of a 22 bed private hospital will not shift the focus, nor compromise the intended role or successful functioning of any centre in the centres hierarchy, including the Fulham Road medical precinct. Nor will it have that effect with respect to the Bayswater Road medical precinct or the James Cook University-Townsville Hospital precinct.
  1. [215]
    Approval of the proposed development would not prevent the Fulham Road medical precinct continuing as “the focus of private acute medical services” in the Townsville region. Nor will it compromise the intended role or successful functioning of centres. Approval of the proposed development will not prevent the Mater continuing to provide efficient and effective health services to the public.

What uses are contemplated in this location, and does TCP support the location of the proposed development on the land?

  1. [216]
    I have already referred to the relevant provisions of the Mixed Use Zone Code. The Mixed Use Zone Code does not expressly state or indicate that hospitals are not contemplated in that zone. And the Specialised Centres zone code does not apply to development of the subject land.
  1. [217]
    The town planners agreed that because the mixed use zone is identified in s 6.3 as a zone included in the Centres Zone category, land in the mixed use zone cannot be described as “out of centre”.
  1. [218]
    Properly construed, TCP does not preclude or even discourage hospitals in the mixed use zone. The Mixed Use Zone Code contemplates a broad range of activities, so long as they do not “compromise” the identified centres, namely the CBD and district or major centres. The proposed development will not “compromise” the intended role or successful functioning of those centres or the specialised centres.
  1. [219]
    In conclusion, I do not accept Mater’s submission that hospital services and facilities should only be located in specialised centres. Nor do I accept its submission that the proposed development does not comply with the locational requirements of TCP for hospital services and facilities.

Will the proposed development have unacceptable impacts on heritage and character?

  1. [220]
    Mater submits that the proposed development will have unacceptable detrimental impacts on:
  1. the cultural heritage values of the Heritage Place, particularly through its impact on the view and appreciation of the Heritage Building as a landmark building in the prominent location of the western part of the land at a main road entrance to Townsville, beneath Castle Hill; and
  1. the traditional character, by the proposed demolition of the dwelling located in a character residential zone.
  1. [221]
    The latter issue of the dwelling house received very little attention at the hearing and was only faintly pressed in submissions. Counsel for Mater accepted that the demolition of the dwelling, of itself, would not warrant refusal of the proposed development. That was a sensible concession given that the building does not contribute to the streetscape and was only moved to its current position recently.

The heritage place

  1. [222]
    The relevant assessment benchmarks for cultural heritage issues are contained in the both the TCP (Strategic Framework and Cultural Heritage Overlay Code) and the State Heritage Code. Considered together, they require consideration of the following broad themes:
  1. cultural heritage significance is conserved;[120]
  1. change is managed to ensure significant heritage features and values are retained;[121]
  1. unavoidable impacts on cultural heritage significance are minimised or mitigated;[122]
  1. development reflects and respects cultural heritage significance,[123] and its features complement rather than replicate cultural heritage values;[124]
  1. places of cultural heritage significance are actively[125] and appropriately re-used;[126]
  1. where the setting and streetscape adjoining the heritage place, and views to and from it, form part of its cultural significance, these aspects are maintained or enhanced;[127] and
  1. development on or adjoining a heritage place does not detract from its heritage significance,[128] and setting, including significant views to the heritage place,[129] and is visually subservient.[130]
  1. [223]
    These themes recognise that heritage places are not presumed to remain static unused monuments to the past, but rather that they should be actively used and that change can occur in a way which is respectful and managed to avoid or minimise detrimental impacts.
  1. [224]
    There are some differences in the application of these themes depending upon whether development is on a heritage place, or merely adjoining it. At the date the development application was lodged, the heritage building and memorial gates were contained in the original lot 707, which is a “heritage place”. After the development application was lodged but before it was decided, part of Wilson Street to the east was closed and amalgamated into original lot 707, creating a new lot 707. Only the heritage building and memorial gates, and the new glazed pedestrian link, are on the heritage place itself. For the purposes of the appeal, I proceed on the basis, as Mater submits, that the new hospital building is not located on the heritage place but is on land adjoining the heritage place.[131]
  1. [225]
    Specifically, for development on or within a State heritage place, the performance outcomes are:
  1. development does not have a detrimental impact on its cultural heritage significance;[132] or
  1. where it is demonstrated that this is not reasonably achievable, development minimises and mitigates unavoidable detrimental impacts on its cultural heritage significance;[133]
  1. where open space, or the relationship between built and open spaces is identified as forming part of its cultural heritage significance, development:[134]
  1. (a)
    maintains or enhances the significance of the setting, including significant views, circulation, access, spatial patterns and layout;[135] and
  1. (b)
    maintains a lot size and layout that permits viable adapative reuse or conservation of significant heritage buildings and open space;[136]
  1. development is sympathetic to, and consistent with the significant features and values of the heritage place, including maintaining significant views to and from it, built form and setback, scale, and open spaces and landscaping features;[137]
  1. new buildings are visually subservient to the cultural heritage significance;[138]
  1. development incorporates compatible elements which complement rather than reproduce traditional building form and details;[139] and
  1. development does not alter, remove or conceal the significant features of the heritage place.[140]
  1. [226]
    Specifically, for development on land adjoining a State heritage place, the performance outcomes are that development is:
  1. located, designed and scaled so that its form, bulk and proximity does not have a detrimental impact on its cultural heritage significance;[141] or
  1. where it is demonstrated that this is not reasonably achievable, development minimises and mitigates unavoidable detrimental impacts on cultural heritage significance;[142]
  1. development is sympathetic to and consistent with the features and values of the heritage place, including maintaining views to and from it, built form and setback, overshadowing and open space and landscaping.[143]
  1. [227]
    In this context, application of those themes requires consideration of the heritage place itself, its statement of significance, the works proposed on or within the heritage place, the new hospital building adjoining the heritage place and the impacts on the heritage place.

The heritage place and its statement of significance

  1. [228]
    The heritage building is constructed of brick and concrete, with the upper floors made of hardwood. There are 21 classrooms on the upper floors, which accommodated up to 1,000 students. Some classrooms have folding (concertina) timber partitions. The building is relatively intact from its original construction, with few modifications externally and some minor alternations internally.
  1. [229]
    Although described as two storeyed in the statement of significance, the heritage building presents as three storeys. It has a significant undercroft (ground floor) which was used as a covered play area, and contained eating spaces, corridors and toilets. The upper levels containing the classrooms have very high ceilings.
  1. [230]
    There is no landscaping in the grounds, save for three mature trees on the Ingham Road frontage and beside the memorial gates and a fence. Around the heritage building is open space.
  1. [231]
    The cultural heritage significance is to be ascertained from the statement of significance in the heritage listing. The statement of significance is in the following terms.

Criterion A

 

The place is important in demonstrating the evolution or pattern of Queensland’s history

Opened in 1939, the former Townsville West State School, is demonstrative of a government scheme, the Unemployment Relief Scheme, implemented to assist the unemployed throughout Queensland, by means of generating work projects, during the Depression of the 1930s. The school, constructed during a [sic] era of substantial building activity, is one of four surviving, intact schools of the period in North Queensland, including Ayr High School (601574).

 

The former Townsville West State School Memorial Gates, constructed in 1921, are an example of a relatively small number of this type of memorial. War Memorials are important in demonstrating the pattern of Queensland’s history as they are representative of a recurrent theme that involved most communities throughout the state. They provide evidence of an era of widespread Australian patriotism and nationalism, particularly during and following the First World War. Two timber honour boards located in the a [sic] corridor of the building also list names of former students and teachers who served in WW1.

 

Criterion B

 

The place demonstrates rare, uncommon or endangered aspects of Queensland’s cultural heritage

 

The former Townsville West State School Memorial Gates, constructed in 1921, are an example of a relatively small number of this type of memorial.

Criterion D

 

The place is important in demonstrating the principal characteristics of a particular class of cultural places

 

The building is a fine example of a two-storeyed Inter-war brick school.

Criterion E

 

The place is important because of its aesthetic significance

Due to its massing and scale, the building is a landmark in the suburban streetscape, in keeping with the Queensland Government’s 1930s policy to raise the educational status of primary education through the construction of well designed, imposing buildings.

 

Criterion G

 

The place has a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons

The building has a strong association with the local community. The grounds on which the former Townsville West State School is built has been the site for over a century of public education for the West End and Townsville community. The building has also been the centre of a variety of community activity in the past, including the use, during WWII, of the building and grounds for a military encampment and convalescent ward and for community meetings and classes. During the emergency period following Cyclone Althea in 1971, the building was utilised as a community relief centre.

  1. [232]
    Criterion A does not refer at all to the site’s use as a school before 1939 (although that is raised in Criterion G). Criterion B is confined to the memorial gates. The statement of significance contains no express reference to landscaping or gardens or open space. It refers to “grounds” but only in Criterion G in the context of historical uses of the site. On the plain words of the statement of significance, open space, or the relationship between built and open spaces, is not identified as forming part of its cultural heritage significance. Nor does the setting and streetscape adjoining the heritage place form part of its cultural significance. I accept that views to the heritage building are impliedly part of its statement of significance, because of the statement in Criterion E, that due to its massing and scale, the building is a landmark in the suburban streetscape.

Works proposed to the heritage place

  1. [233]
    A series of conservation works are proposed to be carried out to the heritage building and the memorial gates. The historians in their joint expert report describe the works in detail.[144] They include extensive repairs and maintenance to the roof, exterior and interior, including rectifying damaged areas and removal of asbestos cement sheeting in ceilings. Ceilings will remain at their current heights, particularly in corridors and to the building perimeter. The existing main corridors will be retained as circulation spaces.
  1. [234]
    A conscious decision has been made to locate the more intensive and heavily serviced hospital uses in the new building, rather than the heritage building. The heritage building will accommodate consulting suites and treatment rooms, with mainly back of house facilities on the ground floor. The interior of the heritage building has been carefully considered and planned to accommodate these new uses, while retaining as much of the original plan form and fabric as possible.
  1. [235]
    The glazed pedestrian link is about 5 metres long and extends over two storeys, connecting the heritage building with the new hospital.
  1. [236]
    Overall, the works proposed to the heritage building do not alter, remove or conceal the significant features of the heritage place. Importantly, the exterior of the heritage building is not altered at all save for the glazed walkway link, which is not obtrusive. There are no services, plant or equipment located on the outside of the building, except for new downpipes.
  1. [237]
    Some of the interior features of the heritage place will be altered. Many of those could not be characterised as “significant” internal features. In my view, the only “significant” internal features that will be altered or concealed are some of the very large classrooms which will be divided into smaller offices. Where possible the folding partitions will be retained in their open position, consistent with conservation practice. However at least one of those rooms will be retained in its original dimensions, including with the original concertina doors. Some representative samples of bag (port) racks and blackboards will be retained in their original locations.
  1. [238]
    The few mature trees will be retained, as will the memorial gates. The gates will remain as a pedestrian entrance and will be separated from the carparking areas by a landscaped buffer. That aspect of the development is uncontentious. The view of the heritage building from the dominant frontage Ingham Road will be preserved. The addition of carparking and landscaping will not detrimentally affect that.
  1. [239]
    It is not uncommon in redevelopment of heritage buildings to see significant alterations to the exterior and interior building fabric, sometimes to comply with modern building standards. Here, the cultural heritage significance of the heritage building is overwhelmingly conserved. The works proposed to the heritage place ensure that its significant heritage features and values are retained.
  1. [240]
    Unavoidable impacts on cultural heritage significance, for example, to achieve compliance with current building code requirements, are minimised or mitigated. For example, the lift necessary for equitable access is internal and is not visible from the outside.
  1. [241]
    Significantly, there is consensus amongst all the relevant experts (historians, heritage experts and town planners) that the modification and redevelopment of the heritage building is an acceptable reuse of that building. I summarise some aspects of their evidence below. Even Mater’s heritage expert, Mr Kennedy, accepted in cross examination that the proposal was acceptable insofar as the heritage building was concerned.
  1. [242]
    One of the striking features in favour of the proposed development is that it will, by the active and appropriate reuse of that building, breathe life into a heritage building that has lain vacant and deteriorating for a decade. Not for education purposes, but for another equally valid community purpose, the delivery of health care services.
  1. [243]
    The setting and streetscape adjoining the heritage place do not expressly form part of its cultural significance in its statement of significance. But in any event in my view these aspects, and views to the heritage building, are maintained.
  1. [244]
    Thus the proposed development does not have a detrimental impact on its cultural heritage significance.
  1. [245]
    There are no new buildings proposed on or within the heritage place. There is only a building element, the glazed pedestrian link, connecting the heritage building with the new hospital. The link itself is visually subservient to the cultural heritage significance of the heritage place. The link is small, modern in form, and does not reproduce the traditional building form or details. The glazing literally reflects the traditional building form, and in my view is complementary to it.

Design of the new hospital building

  1. [246]
    The new building is to be built 5 metres to the east of the heritage building. It is located on the land to approximately align with the projected gable forms of the heritage building. The new building is modern in design and appearance, and does not replicate materials or styles of the heritage building. It is of a larger scale, being five storeys in height compared to the three storey heritage building.
  1. [247]
    The following summary of relevant evidence is in part drawn from the council’s submissions, which were very helpful on this issue. Lautaret adopted those submissions. Mater’s written submissions did not descend into detail regarding this evidence.
  1. [248]
    Mr Richards, the historian engaged by Lautaret, considered that the design of the new building did what buildings adjoining heritage buildings are supposed to do. He described it as a modern building which does not mimic or replicate existing details, and is sufficiently separated so that both buildings could be perceived separately. The setbacks are consistent. The bulk and scale is similar. He said that given the location of the link, the articulation of the storeys of the new building pick up those of the old building. The fact that the link was above ground had the consequence that one could walk around the whole eastern elevation of the heritage building and still perceive it.
  1. [249]
    He acknowledged that while the new building would change the setting, he did not consider that it impacted the significance of the heritage place. He considered that the placement of the new building on the site gives space to the front elevation, with the two side elevations having narrow spaces. The design of the new building is predominantly to the front elevation.
  1. [250]
    The heritage building’s identification as a landmark does not identify any particular views. In his opinion though, it related to the frontage to Ingham Road. I agree. He did not consider that any obstruction of views of the heritage building would represent a negative impact on the identified significance of the site.
  1. [251]
    Mr Ladlay, the heritage expert engaged by Lautaret, considered that the proposal would be a local exemplar project with adaptive re-use. Development adjoining the heritage building would not detract from its heritage significance or values. He considered that aspects of the building’s setting added to its cultural significance from south-west to south-east corners, and to some extent from the north. External materials on the new building and pedestrian link such as dark mirror-curtain wall are applied to façade edges that face the heritage building. This enables the heritage building to be reflected in the façade that faces it. As Mr Powell pointed out, the glazing on the western façade of the new hospital provides a canvas against which the heritage building may be viewed from westerly directions. Other facades and finishes included painted masonry, tiles, and steel, all of which provide articulation at the street frontages.
  1. [252]
    Mr Ladlay agreed that the views from Ingham Road to the south were more significant than other views. He also considered that the heritage building has a strength of design and character to stand on its own such that the new building would not detract from it. He said that there was a comfortable separation between the new building and the heritage building to provide adequate “breathing space”. The heritage building remains clearly legible, as does its roofline. The carparking did not degrade the cultural heritage significance of the building. It formalises informal parking use that has been happening for a long term. He considered that it would enhance the heritage place with properly laid out landscaping.
  1. [253]
    Dr Bell, the historian engaged by Mater, did not comment on architectural matters. He confirmed that the redevelopment of the school building for future use was completely acceptable, and the re-use and re-purposing of the heritage building would be a good outcome, and a positive one for the community. He considered it possible that the design of the new building would draw attention to that part of the intersection, and consequently to the heritage building such that it would enhance the landmark qualities of the school. He also agreed that the view from Ingham Road, reinforced by the memorial gates, was the important view. Some of his other views are undermined by the fact that when considering the new hospital building, he did not distinguish between the assessment benchmarks for development adjoining a heritage place, as opposed to on a heritage place. He applied some of the latter to the new building, which was incorrect.
  1. [254]
    Dr Bell agreed though that the proposed new building complied with the guidance that new building works should generally not directly copy the heritage place and should be readily distinguishable from it.
  1. [255]
    Mr Kennedy, the heritage expert engaged by Mater, was critical of the proposal. His evidence was undermined by the fact that even at the end of his evidence in chief he maintained that the “internal adaption” was unacceptable. However cross-examination established that despite criticisms associated with, for example, the use of airconditioning and artificial lighting, his only “query about the whole thing was the loss of the big rooms”. His residual concern was that room number 1 was not retained in its largest form.
  1. [256]
    In the joint expert report, Mr Kennedy expressed the opinion that open space, or the relationship between built and open spaces, is identified as forming part of the cultural heritage significance in the statement of significance. I have already rejected that construction of the statement of significance. Mr Kennedy (and Mater’s written submissions) sought to read into the statement of significance additional words to suit their argument rather than relying upon the plain words of the citation, which are unambiguous.
  1. [257]
    Mr Kennedy considered that the development did not maintain or enhance the significance of the setting, because of the carparking in front of the heritage building and the proposed glazed pedestrian link. In my view, this was a considerable overstatement of the impacts of those elements. In cross examination he admitted that his approach was a bit of a stretch.
  1. [258]
    He also initially opined that the house at 2A Lamington Road made a strong contribution to the streetscape at the intersection of O’Brien and Wilson Streets. For the reasons explained elsewhere, I reject that opinion. In cross examination, he conceded that his opinion on that might be a little strong.
  1. [259]
    Mr Ladlay said that the new building was visually subservient to the heritage building in that it was subordinate or secondary to it, and did not mimic it. He said that although the scale of the new building was larger, it did not overpower the classic beauty, materials and detailing of the heritage building but rather acted as a contemporary counterpoint.
  1. [260]
    Mr Kennedy and Mr McGowan disagreed that the new building was visually subservient to the heritage building. They considered that the scale and aesthetic contrast of the new hospital would compete for visual primacy of the local area and detract from the prominence currently enjoyed by the heritage building.
  1. [261]
    On this point, I agree with Mr Kennedy and Mr McGowan that the new building, because of its scale and bulk, will not be visually subservient to the cultural heritage significance of the heritage building. That is demonstrated by the photomontages prepared by Mr Powell. In the State Heritage Code, that requirement applies only to development on or within a heritage place, but not development adjoining a heritage place, which the new hospital is. However the heritage overlay code in the TCP contains a requirement that development on or adjoining a heritage place is visually subservient to the heritage place. To the extent the new hospital is on land adjoining the heritage place and it is not visually subservient to the heritage place, it does not comply with that overall outcome of the heritage overlay code.
  1. [262]
    Development such as the new hospital, adjoining a heritage place, must be located, designed and scaled so that its form, bulk and proximity does not have a detrimental impact on its cultural heritage significance. The land to the east of the heritage place is currently vacant so the heritage building currently appears even more prominent. But the development of any large building on the site adjoining the heritage building will necessarily detract from the prominence of the heritage building.
  1. [263]
    The question is whether, taking into account its location, form, bulk and proximity, the new hospital has a detrimental effect on the cultural heritage significance of the heritage building. It is arguable that it does, mainly because of the new building’s height and the reduced setbacks to Sturt Street and O’Brien Street. But on balance, mainly because of the tremendous massing and scale of the heritage building itself, its generous unobstructed setbacks from the lengthy primary frontage and the fact that all the significant views to it are maintained, I do not consider that the new hospital will have a detrimental impact on the cultural heritage significance of the heritage place.
  1. [264]
    Despite the large size of the new building, I am satisfied that it does not detract from significant views to the heritage building, and that these will be maintained. That is particularly so with respect to the main views from the Ingham Road frontage to the south. But the views from Sturt Street will also largely be maintained. The less significant views to the east of the building are minimally impacted. Views of the heritage building from the north are not affected.
  1. [265]
    The proposed development as a whole reflects and respects cultural heritage significance, and the features of the new hospital and the link complement rather than replicate the cultural heritage values.
  1. [266]
    The proposed new hospital and link do not detract from the heritage significance, and setting, including significant views to the heritage place. Although the proposed new hospital is not visually subservient to the heritage building, this does not constitute non-compliance with the relevant heritage assessment benchmarks when considered as a whole and would not warrant refusal of the development.

Conclusion on impacts on the heritage place

  1. [267]
    In conclusion, I am satisfied that:
  1. the cultural heritage significance of the heritage place is conserved;
  1. development on the heritage place does not have a detrimental impact on the cultural heritage significance of the place;
  1. the works proposed to the heritage place ensure that its significant heritage features and values are retained;
  1. unavoidable impacts on cultural heritage significance are minimised or mitigated;
  1. the proposed development as a whole reflects and respects cultural heritage significance, and features of the new hospital and the link complement rather than replicate the cultural heritage values. It is sympathetic to and consistent with the features and values of the heritage place;
  1. the heritage place will be actively and appropriately re-used;
  1. the setting and streetscape adjoining the heritage place do not form part of its cultural significance in its statement of significance, but in any event these aspects, and the views to and from it, are maintained or enhanced; and
  1. the proposed new hospital and link do not detract from the heritage significance, and setting, including significant views to the heritage place.
  1. Although the proposed new hospital is not visually subservient to the heritage building, this constitutes a relatively minor non-compliance with the heritage overlay code in circumstances where the other assessment benchmarks are complied with. It would not of itself warrant refusal of the development.
  1. [268]
    There are no unacceptable impacts on the heritage place that would warrant refusal of the proposed development.

Character dwelling at 2A Lamington Road

  1. [269]
    Lautaret proposes to demolish or remove a dwelling on the north western periphery of the land because it requires that land for carparking.
  1. [270]
    The Strategic Framework includes a strategic outcome that provides that character is maintained in character residential areas by retaining character houses and ensuring sensitive development within these streetscapes.[145] The specific outcomes include that in identified character areas, contributing character buildings are retained.[146]
  1. [271]
    The particular purpose of the Character Residential Zone Code is to protect traditional character and streetscape values by preventing relocation off the site and demolition of contributing character buildings.[147] Contributing character buildings are protected and retained so they continue to contribute to the traditional character and amenity of the street and neighbourhood.[148] Removal, relocation or demolition of a contributing character building only occurs if it can be demonstrated that the loss of the building will not contribute to the loss of the character values, [or] the loss of the building will not impact on the rhythm of the streetscape.[149]
  1. [272]
    The lot on which the dwelling house is located is in the character residential zone, workers’ cottage precinct. That is the only part of the land which is in that zone. The house is well removed from the new hospital building. It has no relationship to either the heritage building or the new hospital building. It certainly does not “complement” the heritage building, as submitted by Mater.
  1. [273]
    The house was moved to its current site in 2011 when the owner of the house at 2 Lamington Road subdivided the back yard and relocated the house to it.[150] It is on a separate lot adjoining the rear corner of the heritage place, but is not within the heritage place. It is a modest, single storey, 3-bedroom timber cottage with corrugated roof sheeting, behind a high fence. The house floor plan has an area of approximately 116m2 plus a small verandah.
  1. [274]
    The land on which the house is located is to be used for seven landscaped carparking spaces. Other than that, no built form is proposed in the character residential zone.
  1. [275]
    Mr Kennedy opined that the house is an important component of the school’s setting and streetscape at the intersection of Wilson and O’Brien Streets. Mater submitted that it was “clearly visible to the surrounding area, to Ingham Road, … and from streets further afield…”.[151] That opinion and submission must be rejected. At best, only the top of the roof elements of the house are visible from Ingham Road. A greater portion of the roof is visible from O’Brien Street. No other parts of the house are visible from any other location.
  1. [276]
    The purpose of the Character Residential Zone Code is to provide for a particular character of a predominantly residential area. The house makes no contribution, or no material contribution, to the streetscape. From Lamington Road it is obscured by the house in front and by virtue of the battle axe driveway. From Ingham Road it is almost invisible. From O’Brien Street only part of the roof is visible. Nor does it make any contribution to the setting of the heritage building. The new development within the lot will be landscaped open space, which cannot be said to be incompatible with the places of character value within that zone, and would not diminish any vernacular architectural character of the streetscape. The carparking itself would not unreasonably detract from residential amenity. To the extent there is any non-compliance arising from this being a non-residential use, it is without consequence, minor, and would not warrant refusal of the development.
  1. [277]
    Mater submits that the TCP seeks to protect traditional buildings themselves, and not just those that contribute to the streetscape. Even assuming that is the case, here the loss of the building will not contribute to the loss of the character values, nor impact on the rhythm of the streetscape. In those circumstances, removal, relocation or demolition of a contributing character building is expressly contemplated in the TCP.
  1. [278]
    I accept Mr Ladlay’s evidence that the proposed removal of the house will not result in the loss of residential character, contributing character buildings, consistence or streetscape values.
  1. [279]
    As Mater appropriately conceded, demolition or removal of the dwelling would not warrant refusal of the proposed development. In any event, in my view removal or demolition of the dwelling complies with the assessment benchmarks because the building does not in fact contribute to streetscape values or traditional character. Nonetheless, because the TCP promotes the conservation of cultural heritage generally, it would be preferable to remove and relocate the dwelling, rather than to demolish it.
  1. [280]
    The proposed development represents an appropriate outcome in terms of character and cultural heritage considerations.

Is the proposed development appropriately designed?

  1. [281]
    Mater submits that the proposed development would have unacceptable impacts upon local character, streetscape qualities, the amenity of nearby residential development and on views, especially to Castle Hill.[152]
  1. [282]
    Mater relied upon the Strategic Framework, specific outcome 3.4.5.1(1) and Mixed Use Zone Code, Part 6.3.7.3, performance outcomes PO6, PO7, PO8 and PO9.
  1. [283]
    Assessment against these benchmarks involves consideration of the height, bulk, scale and design of the new building and calls for an evaluative judgment about whether it would have unacceptable visual impacts.
  1. [284]
    The performance outcomes must first be considered in the context of the relevant purposes of the Mixed Use Zone Code and its overall outcomes. The purpose of the code is to provide for a mixture of development that may include service industry, business, retail, residential, tourist accommodation and associated services and low impact industrial uses.[153] The overall outcomes include: built form and landscaping create an attractive, pedestrian oriented streetscape and visual amenity along major roads is improved;[154] and mixed use areas identified along major roads are designed to encourage a consolidation of built form and activities, access points and signage.[155]

Impacts on character and streetscape

  1. [285]
    The Strategic Framework, specific outcome 3.4.5.1(1), “Protection of amenity”, provides that development mitigates the effects of new development on local character, noise and air quality, access to sunlight, breezes and privacy, and avoids commercial or through traffic in residential streets. The only non-compliance alleged by Mater with this provision is the effect of development on “local character”.
  1. [286]
    Mater submits that the proposed development does nothing to mitigate the effects of the new development on local character, with regard to the character residential area to the north-west of the subject land, the heritage place, the streetscapes in Ingham Road, Sturt Street, Greenslade Street, O’Brien Street and Wilson Street, and the residential areas to the north of O’Brien Street.
  1. [287]
    The zone designation forms the basis for the community to establish realistic expectations about the type of amenity in an area and its local character.[156] Here, the land on which the new hospital building will be established, and where the heritage building is located, is in the mixed use zone. Most other land fronting Ingham Road and Sturt Street is also in the mixed use zone. On the opposite side of Ingham Road to the south, and to the north of the site, land is in the community facilities zone, accommodating a church and primary school, respectively. The house at 2A Lamington Road proposed to be removed is in the character residential zone, but it is the only part of the land in that zone. Lamington Road generally, to the north west of the land, is in the character residential zone. But that street is separated from the proposed new hospital by a considerable distance, separate access and the heritage building. Immediately to the north of the proposed new hospital are O’Brien Street and then Wilson Street. To the east of Wilson Street, land is the low density residential zone. Those houses are opposite the current primary school.
  1. [288]
    The likely visual impact was assessed by Mr McGowan for Mater and Mr Powell for Lautaret.
  1. [289]
    They agreed that the site is a prominent site in the immediate local visual environment where both the immediate area and the local area are of a mixed character. The surrounding character is not residential, nor is it character residential.
  1. [290]
    It was uncontroversial that the nearest residential use is at least 45 metres away to the north. It is separated by a public road reserve and land currently used as a carpark. The nearest residential land use to the west is more than 80 metres away, and separated by the existing heritage building.
  1. [291]
    The visual amenity experts also agreed that the heritage building is an attractive landmark in the immediate streetscape and where parts of it are visible from the local area and viewpoints in the wider visual landscape. They further agreed that the part of the site that will accommodate the new hospital building fronts a busy intersection at an important axis into the CBD, and is located near residential development to the north as well as commercial/retail development to the east and south.
  1. [292]
    From the land’s dominant frontages (the southern frontage to Ingham Road and south eastern frontage to Sturt Street), residential development is not apparent. Rather, it is the commercial uses (shops, service stations, car sales yards), some light industrial uses and prominent transport infrastructure that dominate. There are also other institutional and community uses nearby: the primary school immediately to the north, the railway station to the south east, and a church to the south west.
  1. [293]
    Even Mr McGowan accepted that the character along Ingham Road and Sturt Street (the dominant frontages) could fairly be described as generally unattractive. I agree.
  1. [294]
    Mr Powell noted that the agreed local area included the western part of the railway station and the adjoining western part of the Flinders Street West precinct of the high density residential zone, where built form up to six storeys is supported within approximately 200 metres of the land, increasing to 12 storeys beyond Jones Street.[157]
  1. [295]
    There are no formal pedestrian paths on the southern edge of Ingham Road, opposite the land or extending south along SturtStreet. Further to the east, along the southern side of Ingham Road, there is a narrow unshaded concrete path, sandwiched between the rail line fence and back of kerb, where there are no adjoining buildings to give utility to a footpath in that location. In Mr Powell’s opinion, the experience of the land by a pedestrian within the immediate catchment is more likely to be from the footpath on the northern side of Ingham Road and the north-east stretch of Sturt Street.
  1. [296]
    He said that the existing impacts on amenity relating to the lack of a pedestrian orientated environment on the southern side of Ingham Road, are compounded by a combined road and rail crossing arrangement which demands the attention of any pedestrian or vehicle attempting to navigate it.
  1. [297]
    Mr Powell said that even a three storey building on the subject land would be likely to result in a change in the existing character of the immediate catchment, until such time as buildings up to or exceeding six storeys are constructed within the eastern extent of the local visual catchment.
  1. [298]
    It is in that overall context that the new hospital building must be considered.
  1. [299]
    Photomontages provided some assistance in assessing how the proposal’s relationship to existing and future development would be perceived. Reference to the photomontages demonstrates that the new building would present as a large modern structure at the intersection of Ingham Road and Sturt Street at the south eastern end of the site. At five storeys, it would be taller than existing development in the vicinity, the tallest of which is three storeys. But when viewed in the context of its position, fronting a major intersection which is already visually cluttered, in my view that height difference is not determinative.
  1. [300]
    Mr McGowan’s principal concerns were the excessive bulk and scale of the new building. He also raised issues with articulation and transition. He accepted that if it was concluded that the bulk and scale, in terms of height and width, of the new building were acceptable according to the TCP, those other concerns would substantially reduce.
  1. [301]
    Mr McGowan said that the new hospital building will be incompatible in terms of scale and overall appearance with the built form in the local area and with the lower intensity area north of Ingham Road and west of Sturt Street. He said the new building’s scale and lack of articulation, or stepping in mass, meant it would not achieve a sensitive transition to surrounding built form. He considered the prominence of the heritage building would be eroded as the new hospital would compete for visual primacy of the local area. He said the new building crowded the heritage building and compromised its spatial setting.
  1. [302]
    Mr McGowan’s complaint about the new building’s lack of separation from the heritage building failed to recognise that the road closure of the southern end of Wilson Street has now occurred and that part of the road has been amalgamated into the land and is privately owned. It is now contained in the mixed use zone. A building three storeys in height would automatically comply with the relevant acceptable outcome. Any reasonable community expectation should include (at the least) a range of code assessable uses on that part of the site, three storeys in height.
  1. [303]
    Mr McGowan conceded that the new hospital building was attractive, with appealing qualities including the irregular shape, the modernity of the glazing and the way it was used in relation to the heritage building. It gave a modern feel which contrasted nicely to the school. He acknowledged that any obstruction of view from the proposed development constituted a “fairly limited extent of impact”.
  1. [304]
    Mr McGowan initially expressed the view that the proposed development would substantially obstruct views of Castle Hill from the Sturt Street and Ingham Road intersection. He later conceded that this impact was confined to a limited, very specific location. In the end, impact on views to Castle Hill was not an issue strongly pursued by Mater.
  1. [305]
    Mr Powell said that there are unlikely to be any significant adverse impacts on residential amenity for a number of reasons. The proposed new building is at least 45 metres away from the nearest residential uses to the north (and separated from them by a public road reserve and land currently used as a carpark) and more than 80 metres to the west (and separated by the existing heritage building). Any overshadowing will largely be cast over roads to the south and away from residential uses. Potential for overlooking from the first three storeys will be directed away from residential land uses.
  1. [306]
    Mr Powell considered that there are unlikely to be any significant adverse impacts on the existing character and streetscape of the local area. He relied upon a number of matters to express this opinion. The new hospital building, while higher than three storeys, would respect the primacy of the principal centre (CBD) while also remaining below the height of future six to 12 storey (or greater) buildings anticipated in the Flinders Street West precinct about 200 metres away. With any three storey building on that site at the intersection would be expected a degree of visual punctuation and commanding presence. He thought that the additional two storeys of the proposed new hospital were unlikely to have a significant adverse impact on that character. The impact on the streetscape was mitigated by the use of varied materials and ground floor glazing to the main frontage, and above ground level, by building articulation at five times the frequency anticipated in the acceptable outcome within the code.
  1. [307]
    Lamington Road at its eastern end is a no through road. Mr Powell considered that the new building would not have significant adverse impacts on the character of the eastern end of Lamington Road as that view is already blocked by the large shed or multi-purpose facility in the primary school grounds. I agree. As one drives east down Lamington Road towards the land the view is of the primary’s school’s multi-purpose facility and the roof of the heritage building. While the top of the proposed new hospital may be visible, it would be to the right of, and twice as far away, from the end of the street.
  1. [308]
    Mr Powell said there are unlikely to be any significant adverse impact on views of Castle Hill because views from vehicles travelling north along Sturt Street (including the view from the final approach to the intersection, across the top of the heritage building) are not impacted by the proposed new building. As for the heritage building, the clearest, unobstructed views of the southern façade of the heritage building from the south west boundary, the footpath along the southern boundary, from vehicles travelling along Ingham Road and from north bound vehicles in Sturt Street, are not impacted by the proposed new building. No relevant provision in TCP relied upon by Mater expressly seeks to protect views to and from Castle Hill. The evidence as a whole, including the comprehensive view analysis undertaken by Mr Powell, satisfies me that that there will be no unacceptable impact on views of Castle Hill or the heritage building.
  1. [309]
    In conclusion, I am satisfied that the proposed development complies with the specific outcome by mitigating the effects of new development on local character.

Height

  1. [310]
    Performance outcome PO6 states that “built form is generally low to medium rise”. The acceptable outcome states that “All buildings and structure do not exceed 3 storeys in building height, except where stated otherwise for a particular precinct”.
  1. [311]
    Mater submits that the proposed development conflicts with this provision because it is not “low to medium rise”, in the context of this part of the city of Townsville.
  1. [312]
    Community expectations about the number of storeys to be built in the area would be informed by the statement in PO6 that built form is “generally low to medium rise”. “Low to medium rise” is not defined. Because the reference to three storeys in A06 is only an acceptable outcome, reasonable expectations cannot necessarily be limited to the height specified of three storeys. A three storey building is clearly envisaged and encouraged. The use of the qualification “generally” also admits of some flexibility that development that will be neither low nor medium rise.
  1. [313]
    The expression “low to medium rise” is informed by reference to other provisions of the TCP. In particular precincts of the Mixed Use Zone Code, the performance outcome is expressed the same way, “generally low to medium rise”, but a greater number of storeys is identified in the acceptable outcomes.[158] In specific precincts, “low rise” is described as being up to two or three storeys.[159] In another precinct “low-medium rise” is described as up to four storeys.[160] PO6 refers to development that is generally low “to” medium rise (rather than, for example, “low-medium” rise). The performance outcomes for the Fulham Road and Bayswater Road medical precincts[161] each intend a “medium-rise” environment including development of up to six storeys.
  1. [314]
    By comparison to a three storey building, the question then becomes whether the proposed development would have a built form which is unacceptable. For reasons that were articulated in the evidence of Mr Powell, Lautaret submits that the bulk, height and scale of the proposed development is generally low to medium rise and is acceptable, particularly when the built form of the proposed development is compared to that of a three storey building on the land.
  1. [315]
    Council submits that even putting aside the flexibility associated with the requirement that height be “generally” low to medium rise, the height of the proposed building is as contemplated by PO6.
  1. [316]
    Lautaret’s town planning expert, Mr Buckley, said that that anything up to three to four storeys was medium rise. Mater’s visual amenity expert, Mr McGowan, agreed that five storeys would usually be described as medium rise.
  1. [317]
    As a general proposition, it is the impacts of the proposed development that must be assessed on their merits and not some hypothetical alternative. Nonetheless, the likely future development of the area (in the form of a code assessable compliant building) may be considered in assessing how the proposal will sit with the intended outcome for the area and with legitimate community expectations.
  1. [318]
    Mr Powell prepared a hypothetical representation of the scale and appearance of a building which he said complied with acceptable outcomes for at least the eastern part of the land.[162] That would result in a building able to be built to street frontages with an awning over the full width of the footpath, and a three storey height, resulting in a building which adopted a similar ground floor level; and an overall building height of 18 metres, being a similar height to the upper three levels of the proposal, plus rooftop plant. Mr Powell observed that a hypothetical three storey building on the land could extend further toward the intersection than the proposal and would have a more immediate presence at the intersection. That exercise suggested that the height and front setback of the proposed building would not be incompatible with the planned character for the land.
  1. [319]
    Mater submitted that the town planning assumptions underlying Mr Powell’s three storey comparison building had not been established and there was no suggestion or evidence that such a building would ever be built. Mater was critical of Mr Powell’s methodology, including the floor heights adopted and the lack of three dimensional representation. I accept that the hypothetical representation of the three storey compliant building had its limitations. Nonetheless, it gave some idea of the scale and impact of such a development on the site, compared to the proposed new hospital.
  1. [320]
    Mr Buckley acknowledged that while the height of the new building requires an exercise of discretion, because of the relativity to the scale of the heritage building, the maintenance of that building’s presentation to the street, and the distance from the nearest dwelling, combined with the fall on the site, the height was acceptable.
  1. [321]
    Mr Perkins considered that whilst the proposed building would be higher and positioned forward of the heritage building, the heritage building would still enjoy a strong presentation to the road in front of it. The new hospital building was well set back from any other development (other than the heritage building) and positioned on a triangular piece of land which called for the building form evident on the proposal plans. It appeared to him as an attractive, architecturally designed landmark building positioned at an entry point to Townsville’s CBD.
  1. [322]
    In my view, it is arguable that there is some non-compliance with PO6 because the building is five storeys plus rooftop plant, when generally community expectation would have been around three storeys. However the use of the term “generally” in PO6 allows for the possibility of buildings which exceed that. If there is non-compliance, its extent is relatively minor. When considered against the scale and appearance of a building which otherwise complies with the relevant benchmarks, the built form of the new building will not, in my view, result in unacceptable visual amenity impacts.

Transitioning in height and scale

  1. [323]
    Performance outcome PO7 states “Built form provides for a sensitive transitioning in height and scale from surrounding land uses.”
  1. [324]
    Mater submits that the proposed development does not comply with this provision particularly in relation to the residential development to the north of O’Brien Street and the heritage building and the streetscape.
  1. [325]
    This requirement must be considered in the context where the dominant surrounding or adjacent land use is the very large heritage building, which presently dwarfs the height and scale of all development in the vicinity.
  1. [326]
    Mr Powell considered that some degree of juxtaposition (clear distinction in building form, height, scale and detailing) between the heritage building and the new hospital may be appropriate to ensure the buildings were visually distinguishable from the important features and fabric of the heritage building. This was supported by evidence of the heritage experts to which I have already referred.
  1. [327]
    Mr Powell pointed out that the nearest land uses across the road include a bicycle store approximately 25 metres north east, and a vacant lot at 11 Wilson Street currently used for carparking approximately 22 metres to the north. The separation distance between the new building and nearest residential uses of approximately 45 metres, together with the windows on the first three storeys of the proposal being oriented away, are such that he considered it unlikely to result in unacceptable impacts associated with overlooking and overshadowing. He considered the separation provided an appropriately responsive built form transition to those surrounding land uses.
  1. [328]
    Mr McGowan focused upon the impact of the proposed new building on existing residential amenity on the lot on the immediate northern side of O’Brien Street in the low density residential zone. That lot is currently vacant and used for carparking. He conceded that any future development on that site would have to interface with the less appealing uses associated with the primary school’s multi-purpose facility building opposite to the west, the ad hoc carpark to the south, the busy intersection and unattractive environment around that intersection, and the commercial building to the east. He agreed that the residential lot does not presently enjoy a high visual amenity, with a low quality outlook in three directions. As to the houses in Wilson Street, he acknowledged that they were currently well screened by large trees and substantial vegetation.
  1. [329]
    In my view, Mater significantly overstated the impact on residential amenity on land to the north. Currently there are no residents in O’Brien Street, only a vacant lot used for carparking. The residents of Wilson Street already live opposite the current operative primary school. There is significant screening vegetation along the Wilson Street frontage. As residents drive south down Wilson Street to exit onto Sturt Street, they currently have a view of the large school shed or multi-purpose facility, the back of the very large heritage building, vacant land with carparking and the busy and unattractive Ingham Road/Sturt Street intersection. It is true that that view of the approach to the intersection would change by construction of the new hospital building. But that view will inevitably change with any development on the land, including a potential code assessable complaint three storey building.
  1. [330]
    I am satisfied the proposed development complies with PO7.

Contribution to streetscape

  1. [331]
    Performance outcome PO8 states “Development contributes to an attractive, coherent and integrated streetscape, by: (a) ensuring buildings assist in defining and enclosing the street frontage; (b) improving the continuity of built form; and (c) using complementary landscaping and streetscape treatments”.
  1. [332]
    Mater focuses on PO8(c), and submits that the proposed development does not comply because it does not contribute to an attractive, coherent and integrated streetscape, in particular it does not use complementary landscaping and streetscape treatments. Extensive car parking and manoeuvring areas around the heritage building and along the street frontage do not meet this objective.
  1. [333]
    Mr McGowan described the heritage building as having a landscaped setting and a soft, landscaped street interface between the heritage building and Ingham Road. He maintained that position in cross examination. I do not accept that because it is a considerable overstatement.
  1. [334]
    Whatever the virtues of the heritage building’s former occupants, tree planting was apparently not one of them. The heritage building sits unadorned by a shred of vegetation. The large area of open space in front of it, over 80 metres long, comprises a large concrete or hardstand parking area and some grass. There are only three trees: two flanking the memorial gates, and another at the western end of the site. All are close to the footpath. There is no other “landscaping” to speak of. There is the original low chain mesh fence, which will be retained. The flawed notion that there was a soft landscaped interface in front of the heritage building permeated other aspects of Mr McGowan’s evidence, including that the provision of carparking in front of the heritage building diminished its appearance and made for an unattractive streetscape. I do not accept that opinion.
  1. [335]
    The front of the building has clearly been used informally for carparking in the past. The proposed development, which provides for plantings on all frontages, will deliver significantly more landscaping than presently exists and be far more attractive, including in terms of carparking arrangements, than nearby uses along Ingham Road and Sturt Street.
  1. [336]
    With respect to PO8(b) and (c), I accept from the architectural landscape drawings, landscape concept plan and Mr Powell’s evidence, that the proposed development will assist in defining and enclosing the street frontage and will also improve the continuity of built form by being of a similar large scale and height to the heritage building.
  1. [337]
    In conclusion, I am satisfied that the proposed development complies with PO8.

Built form

  1. [338]
    Performance outcome PO9 states that “Built form is designed to: (a) create a pedestrian rather than car oriented street frontage; (b) break down the façade into finer scaled components; and (c) avoid large expanses of blank walls oriented to the street”. The relevant acceptable outcomes include A09.4, “The maximum length of any unarticulated wall is 15m, without a change in plane of at least 0.75m.” and A09.5 “At the ground storey, a minimum of 65% of building frontage is provided as predominantly transparent windows or glazed doors and a maximum of 35% as solid façade.”
  1. [339]
    Mater submits that the proposed development conflicts with this provision because it does not satisfy those acceptable outcomes and the built form is not designed to:
  1. create a pedestrian rather than car orientated frontage (as a result of the use of the frontage of the heritage place for extensive car parking and manoeuvring areas, with some landscaping);
  1. break down the façade of the new building into finer scaled components; or
  1. avoid large expanses of blank walls orientated to the street (being Ingham Road, Sturt Street, Greenslade Street, O’Brien Street and Wilson Street).
  1. [340]
    With respect to PO9(a), the proposed new building avoids a car orientated street frontage by designing the building to extend all the way to the frontage, preventing the location of carparks in that alignment. Mr Powell considered the provision for carparking (complemented by the addition of landscaping) in front of the heritage building was acceptable, given its large setback, the existing concrete hardstand and the fact that carparks had historically been available for use in this area.
  1. [341]
    With respect to PO9(b) and (c), Mr McGowan was critical of the limited articulation or stepping of built form. The proposed building provides a similar depth of articulation at five times the frequency of that anticipated by the acceptable outcome AO9.4. This means that articulation is proposed as part of this development to occur every three metres instead of every 15 metres (along with five distinct finishes and material arrangements) to the northern façade, with a similar or greater degree of articulation to occur to the southern and eastern facades. Mr Powell was of the opinion that such an outcome assists to minimise adverse impacts of bulk and scale, breaks down the façade into finer scale components and avoids large expanses of blank walls orientated to the street.
  1. [342]
    He confirmed in his oral evidence that PO9 was satisfied. Mr McGowan accepted that the southern façade complied with PO9(b).
  1. [343]
    Mr Powell also noted that from Wilson Street, some visual permeability would remain at ground level with the drop off zone and building entry maintaining a ground level visual connection between Wilson Street and Ingham Road.
  1. [344]
    I am satisfied that the proposed development complies with PO9.

Conclusion on whether the proposed development is appropriately designed

  1. [345]
    Whether the ultimate outcome is acceptable in responding to the planning scheme provisions discussed earlier is ultimately a matter of evaluative judgment upon which minds may differ.
  1. [346]
    The evidence satisfies me that, when viewed in perspective and in the context of potential future development of a scale which could be reasonably expected, the proposal would not have unacceptable impacts upon local character, streetscape qualities, the amenity of nearby residential development and on views, especially to Castle Hill, to the extent contended for by Mater.
  1. [347]
    Generally the proposed development complies with the relevant assessment benchmarks identified save for the potential minor non-compliance identified. Given the other positive aspects of the development, this non-compliance, either alone or in conjunction with any other non-compliance I have identified in these reasons, would not warrant refusal of the proposed development. I also consider that the proposed development complies with the relevant purpose and overall outcomes of the Mixed Use Zone Code.

Other miscellaneous issues

  1. [348]
    All active parties to the appeal nominated experts in the field of traffic engineering. Two traffic joint expert reports were produced. The experts agree that traffic engineering matters do not warrant refusal of the proposed development. Mater no longer maintains that there are traffic engineering impacts from the proposed development that would warrant refusal of the development application.
  1. [349]
    While there remains some slight disagreement between the experts about the conditions that ought be imposed on the proposed development if it were to be approved, those are matters that can be dealt with at the conditions stage. I accept that there are no traffic engineering reasons that warrant refusal of the proposed development.
  1. [350]
    Mater submits that the need for an on-street loading in O’Brien Street and some changes that may be required to the intersection of Greenslade and Sturt Streets reflect undesirable overdevelopment of the land. I reject the submission that any part of the proposed development represents overdevelopment of the land. Those matters do not change the conclusions I have already reached.
  1. [351]
    Both Lautaret and Mater engaged experts on amenity including noise and air quality. Two joint expert reports were prepared. The experts agreed that amenity matters relating to the appeal could be dealt with by way of conditions. Lautaret accepts the recommendations of the experts in respect of those conditions of approval. There are no matters arising from those issues that warrant refusal of the proposed development.

Conclusion regarding assessment of proposed development against the assessment benchmarks

  1. [352]
    In conclusion, the proposed development complies with the relevant assessment benchmarks save for the very minor areas of non-compliance identified above. None of those, alone or collectively, is sufficient to warrant refusal of the development.

Any other relevant matter under s 45(5)(b) PA

  1. [353]
    The parties initially framed this issue as “in the event that the proposed development departs from an applicable planning instrument, whether there are relevant matters which would justify approval of the proposed development, notwithstanding such departure.”[163] That wrongly describes the proper approach under s 45(5)(b), for reasons explained earlier. The section is not confined to matters in favour of the proposed development that would justify approval. It may include them but it equally may include matters that militate against approval and favour refusal.[164]
  1. [354]
    “Any other relevant matter” is not defined. It excludes a person’s personal circumstances, financial or otherwise.
  1. [355]
    It is intended that any such matters be matters of public, not private, interest, given that the planning and development assessment system is intended to serve the public interest.[165]
  1. [356]
    Examples given (which are not exhaustive) include a planning need. The Explanatory Notes to the Planning Bill 2015 (Qld) state, with respect to a planning need, that:

“There is considerable judicial authority about need in a planning sense. Generally it does not refer to a pressing or urgent need, but refers to whether the community’s interests in general, as opposed to the proponent’s or another individual’s interests would be well served by a particular decision. For this reason need cannot be conflated with demand for a facility or service. It is a relative concept so it is not desirable to seek to define it in statute. It is best established on a case by case basis having regard to the circumstances of each case.”[166]

  1. [357]
    “Relevant matters” relied upon by the parties for the purpose of s 45(5)(b) were:
  1. Whether there was a need for the proposed development;
  1. Whether the proposed development would have unacceptable impacts on Mater’s existing facilities and redevelopment and the range of health care services provided to the public by Mater; and
  1. Other matters identified below.

Is there a need for the proposed development?

  1. [358]
    A great deal of time was taken up at the hearing with evidence from experts about whether there was a need for the proposed development. Need also occupied a significant part of Mater’s submissions. In the end, that evidence and those submissions were (for the reasons below) of questionable, or at best limited, utility.
  1. [359]
    Mater submitted that:
  1. “Lautaret has failed to demonstrate any public or community need for any new private hospital services in Townsville, let alone any need for the proposed development to be located on the subject land. Indeed, the evidence reveals that there is no need for any new private hospital facilities in Townsville, but rather the proposed development will inevitably have impacts upon the range of services Mater provides to the community.”;[167]
  1. “There is no demonstrated need for the Proposed Development, as the existing hospitals in the Specialised Centres have capacity to provide the relevant services currently and for the foreseeable future, particularly with already approved redevelopment.”;[168] and
  1. “In light of the evidence, there is no community need for additional hospital and healthcare services in the Townsville region and the Proposed Development would not add to the range of additional hospital and healthcare services in the Townsville region.”[169]
  1. [360]
    There are two problems with these submissions. First, Lautaret was not required to demonstrate need as part of the development’s compliance with the assessment benchmarks. Second, to the extent need may be relevant at all, it is not some general need for new or additional private hospital services in the Townsville region but rather whether there is a need for the proposed development on the land.
  1. [361]
    No relevant provision of TCP expressly requires a need to be demonstrated for the proposed development, including a new hospital, on the land.
  1. [362]
    Mater’s submissions on this issue refer to s 3.3.4.1(28) of the Strategic Framework, but that provision does not refer to need. Whether there is a need for the proposed development is not relevant to assessing compliance with the assessment benchmarks. Need for the proposed development, particularly a new hospital, is not expressly called up or required in any of the relevant assessment benchmarks. That may be contrasted with provisions of the scheme that do require a need to be demonstrated for other forms of development. For example, new major strategic facilities “which may be needed” are to be located in specific areas.[170] New neighbourhood centres may establish “where need can be demonstrated”.[171]
  1. [363]
    Thus, in this appeal for this proposed use, the issue of need only arises in the context of the discretion to consider “any other relevant matter” under s 45(5)(b).
  1. [364]
    In those circumstances, a demonstrated need for the proposed development would be a relevant matter the court may take into account in the exercise of the discretion under s 45(5)(b), which would favour approval. But if the proposed development complies with the assessment benchmarks, an absence of need would not be fatal, or even significant.
  1. [365]
    Put another way, Lautaret does not have to demonstrate that there is a need for the proposed development. But if it can, that militates in favour of approval. To the extent Mater may have conducted some of its case on the basis that Lautaret was required to demonstrate a need for the proposed development, that was wrong.
  1. [366]
    Before turning to the evidence of need, it is useful to bear in mind some general principles about need in a planning context. The question, whether need is shown to exist, is to be decided from the perspective of a community and not that of an applicant, commercial competitor or particular objector.[172] Nor is the impact of a proposed development on existing like businesses such as Mater’s a matter which is to be taken into account adversely to the proposed new facility unless the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community.[173] A use is needed if it would, on balance, improve services and facilities available in a locality.[174] In planning terms, need is a relative concept “not connoting present urgency” but rather relating to the “general well-being of the community”.[175] A thing is needed if its provision, taking all things into account, improves the physical well-being of the community.[176]
  1. [367]
    Lautaret contends that in considering whether there is a need for a new hospital, the bar should not be set too high because the provision of good quality health care is an essential matter. It relied on authority to the effect that a hospital, whether run for profit or not, is not an activity which could ordinarily be described as a commercial or trading activity.[177] In Salmar Holdings Pty Ltd v Hornsby Shire Council Mason JA (as his Honour then was) described a hospital as “an activity of such intrinsic worth and merit and so beneficial to the community that in common with other objects it has always been regarded in law as a charitable object.”[178] In Jesmond Hospital Pty Ltd v Strathfield Municipal Council[179], in approving the expansion of a convalescent home, Hardie J stated that there is a strong public interest in those facilities being modernized and improved”.
  1. [368]
    Mater submits that this cuts both ways: that the bar for assessing adverse impact on an existing hospital should also be low, and that there is strong public interest in Mater’s existing facilities being modernised and improved. I accept the second of those contentions but not the first. There is no warrant to imply such a test when the TCP expressly prescribes what the bar is for assessing impact on existing medical facilities. The planning scheme requires that development does not “compromise the intended role or successful functioning of centres” and that the Fulham Road medical precinct “continues to be the focus for private acute medical services in the Townsville region” and “the continued efficient and effective operation of the hospital is protected”. Those are the tests that must be applied.
  1. [369]
    I refer to my reasons above with respect to the evidence of the hospital demand experts. In summary, the addition of another choice in the provision of overnight private hospital services in Townsville is a benefit to the community. The public Townsville hospital is at or near capacity and is experiencing very significant demand from private patients. That an extremely high proportion of private patients in Townsville are choosing to be treated at the public hospital rather than the Mater, is not in the community’s interests as a whole. There will be continuing organic growth in Townsville in the private hospital market, which cannot or will not be accommodated at the Mater. Within the new few years, there will be a substantial shortfall in the number of private overnight beds available to accommodate the demand. The shortfall will far exceed the 22 new beds that the proposed development would supply.
  1. [370]
    The economic need experts, Mr Ganly for Lautaret and Mr Duane for Mater, involved consideration of need at a high level. They agreed on a number of matters which are relevant to hospital demand in Townsville. For the relevant catchment, the population is to increase by almost 80,000 people, or 33%, between 2018 and 2036. A significant ageing of that population is anticipated. The share of the population older than 70 years is the only age group that will increase in population share. That age group is forecast to increase at a rate far higher than the overall population growth. An ageing population has important implications for hospital bed demand, as admission rates increase significantly for older Australians. The rate at which people within the region present to hospital increases significantly once people reach the age of 60. By the age of 70 years, the presentation rate is more than three times the total population average.
  1. [371]
    The public sector hospital bed provision rate in Townsville (of 3.64 beds per 1,000 people) is significantly higher than the Queensland average of 2.48. On the other hand, the private sector overnight hospital bed provision rate (of 1.09 beds per 1,000 people) is significantly lower than the Queensland average of 1.42. Whilst there was debate between the experts as to whether a comparison with the rest of Queensland average for a location such as Townsville was inappropriate, Mr Ganly considered that applying the most relevant metric, the Townsville catchment was clearly undersupplied with just 0.84 beds per 1,000 people compared with the Queensland average of 1.29.
  1. [372]
    Mr Ganly observed that as Townsville is the largest regional centre in Queensland. its size and status, and its distance from Southeast Queensland, means that its residents and medical practitioners have the right to expect that facilities are provided at a level which is at or above typical Queensland rates.
  1. [373]
    Mr Ganly said that there was a currently a significant undersupply of acute private overnight hospital beds. Even with approval of the proposed development, there would be a significant undersupply of beds: 135 beds in 2021, growing to 235 beds by 2036. He agreed that the proposed development would provide competition within the Townsville market. Competition benefits manifest in many forms, of which price (for patients and practitioners) is just one component. Other examples he gave were reduced waiting list times and access to new custom built facilities with modern equipment. His evidence was that approval of the proposed development would result in the creation and support of a significant number of new high value jobs in the health sector, one of the fastest growing employment sectors.
  1. [374]
    To the extent that there were differences between them, I preferred the evidence of Mr Ganly to Mater’s economic need expert, Mr Duane.
  1. [375]
    Mr Duane applied a different analysis (involving the “rest of Queensland” average). On that basis he concluded that there was a limited need, if any. Mr Duane said that there is no objective reason why the provision of acute overnight private hospital beds needed to be the same as the Queensland average and that any need or demand can be catered for by the existing preliminary approval of the Mater.
  1. [376]
    Mr Duane appeared of the opinion that major regional centres such as Townsville ought to be provided with acute overnight hospital beds at a lesser rate than the Queensland average. The hospital demand experts did not agree with such an assessment. Dr Hardes agreed that residents from large regional cities, such as Cairns and Townsville, ought to expect the same quality and level of services from hospitals as residents from South-East Queensland.
  1. [377]
    Mr Duane nevertheless identified an undersupply of 21 beds currently, increasing to 98 beds by 2036. For the reasons set out elsewhere, in my view reliance on the Mater’s preliminary approval to meet that supply is misplaced. Even if eventually implemented, the preliminary approval would not see the delivery of further beds to the private hospital market for many years and potentially decades.
  1. [378]
    I am therefore satisfied that there is a need for the proposed development. Even if there were non-compliance with the assessment benchmarks, in my view, that need and the other “relevant matters” referred to would be sufficiently compelling to warrant approval of the proposed development.
  1. [379]
    Mater sought to downplay the community benefit of the new hospital by emphasising that “importantly, the proposed hospital is to be a private hospital, run by specialist surgeons to facilitate their limited specialised surgical procedures (rather than providing a full suite of surgical, medical and allied hospital facilities).”[180] It reinforced this point in oral submissions.
  1. [380]
    However it is important to bear in mind that the Court is considering the acceptability of the proposal before it, rather than choosing between that and some hypothetical proposal offering similar or greater advantages to this proposal and perhaps in a different location.
  1. [381]
    Even if there is an impact on Mater’s delivery of health care services in the short to medium term, the benefits associated with the new hospital in the proposed development will go some way to making good some of those effects.
  1. [382]
    Townsville is identified as the major economic and service centre for North Queensland and provides the highest order community and commercial services for the region, including health facilities which serve the whole of north and northwest Queensland.[181] In those circumstances, the provision of state of the art health facilities to Townsville would, in principle, be in the public interest and a positive community outcome.
  1. [383]
    In conclusion, there is a planning need for the proposed development and the community’s interests would be well served by approval of it.

Will the proposed development have unacceptable impacts on Mater’s existing facilities and redevelopment and the range of health care services provided?

  1. [384]
    An assessment benchmark does not include a matter of a person’s circumstances, financial or otherwise. Similarly, a person’s personal circumstances, financial or otherwise, are not a “relevant matter” for the purposes of s 45(5)(b).
  1. [385]
    In considering the question of relevant considerations in the context of a broadly expressed planning scheme provision in Kentucky Fried Chicken Pty Ltd v Gantidis & Anor, Barwick CJ said:

“… economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter. … Restraint or prevention of economic competition is not, in my opinion, part of the orderly and proper planning of the zone to which cl. 7(2) refers.”[182]

Stephen J also said:

“… the significant word, quite vital to the nature of the submission … is ‘facilities’. If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.”[183] [emphasis added].

  1. [386]
    Therefore, the mere threat of competition to Mater, or a threat to Mater’s profitability, is not a relevant matter for the purposes of s 45(5)(b). The economic impacts on Mater, in that narrow sense, are not relevant.
  1. [387]
    However, if the hospital and medical facilities and services presently enjoyed by the community are put in jeopardy by the proposed development, and the resultant community detriment will not be made good by the proposed development, that would be a relevant matter for the purposes of s 45(5)(b).
  1. [388]
    Mater submits that its ongoing capacity to provide a full range of secondary and tertiary hospital services, including intensive care, for the Townsville regional community is a matter of public interest and if the proposed development is approved, those services will be reduced.
  1. [389]
    Council submits that even on Mater’s own evidence, there is nothing more than the possibility of some reduction in services, that any reduction (if it did occur) would not be long term, and those services would be available elsewhere, either at the proposed development or at the Townsville Hospital. Finally it submits that even if such impacts were established, they would be substantially outweighed by the other considerable benefits associated with the proposed development.
  1. [390]
    I have already summarised earlier the evidence about the impact the proposed development is likely to have on the Mater’s services and facilities.
  1. [391]
    For the reasons explained earlier, I am not satisfied that the hospital and medical facilities and services presently enjoyed by the community will be put in jeopardy by the proposed development. Nor am I satisfied that there will be a resultant overall adverse effect on the extent and adequacy of the hospital and medical facilities and services available to the community, if the proposed development proceeds.

Other “relevant matters” that justify approval

  1. [392]
    There are a number of additional relevant matters that support approval of the proposed development.
  1. [393]
    This Court on appeal, in deciding a development application, is performing a decision making function under the PA. This function must be performed in a way that advances the purpose of the Act.[184]
  1. [394]
    Relevantly, the purpose of the Act is “to establish an efficient, effective, transparent, integrated, coordinated, and accountable system of land use planning (planning), development assessment and related matters that facilitates the achievement of ecological sustainability”.[185] “Ecological sustainability” is a balance that integrates, relevantly here, economic development and the maintenance of the cultural, economic, physical and social wellbeing of people and communities.[186]
  1. [395]
    Achieving economic development “includes achieving diverse, efficient, resilient and strong economies, including local, regional and State economies, that allow communities to meet their needs but do not compromise the ability of future generations to meet their needs.”[187] Maintaining “the cultural, economic, physical and social wellbeing of people and communities includes”, relevantly, “creating and maintaining well-serviced, healthy, prosperous, liveable and resilient communities with affordable, efficient, safe and sustainable development” and “conserving or enhancing places of special aesthetic, architectural, cultural, historic, scientific, social or spiritual significance”.[188]
  1. [396]
    Advancing the purpose of the Act will include, relevantly:
  1. conserving places of cultural heritage significance;[189] and
  1. encouraging investment, economic resilience and economic diversity;[190] and
  1. supplying infrastructure in a coordinated, efficient and orderly way.[191]
  1. [397]
    The proposed development conserves and enhances a place of cultural heritage significance. The heritage building will be reactivated, repaired and maintained as part of the development, after years of disuse, with little or no public access. This is a particularly compelling factor in favour of approval of the proposed development. Without the proposed development, the heritage building is likely to remain unused and to deteriorate, as it has for many years.
  1. [398]
    I accept Mr Buckley’s opinion that the community interest is advanced significantly when planning authorities give an economic life to heritage buildings. He said that, in its simplest form, this is a direct and practical way that one generation passes on to the other, without economic burden, something of cultural and community significance. Intergenerational equity underpins the notion of sustainability, which is a foundation of modern planning and environmental legislation. Mr Vann agreed that it provided the heritage building with another use, and an economic opportunity to protect an asset which has been deemed to be of community value. Both Mr Perkins and Mr Vann agreed that adaptive re-use of the heritage building for medical purposes had merit.
  1. [399]
    The proposed development facilitates and encourages investment into new health facilities and services. Mr Vann also agreed that a project that achieved the re-use of a heritage building, at the same time as providing state of the art hospital care and other related medical facilities involved two positives from a planning perspective. He confirmed that the provision of state of the art health facilities to a regional city such as Townsville would, in principle, be a positive public community outcome. Mr Ganly observed that there are few more critical needs for a modern society than proper, accessible and cost effective health care.
  1. [400]
    Dr McEwen, an orthopaedic surgeon and one of the local medical specialists proposing the development, gave evidence about how the new hospital was intended to operate. In contrast to Mater’s facilities, it is intended to be wholly digital. That has advantages both for clinicians and patients. It avoids transcription errors in terms of medication, has operational efficiencies both for the hospital as a whole and individual practitioners, and improves the overall patient experience during their stay. A further advantage from a management point of view is associated with data analytics and the capacity to use the digital systems to maximise efficiency. He said that digitalisation was one of the key things that the Department of Health wanted to see in obtaining a licence. Dr McEwen doubted whether they would have been successful in their licence application without it.
  1. [401]
    Dr McEwen’s evidence was that the proposed new hospital would operate differently to the Mater and represent a totally different patient and clinician experience, in part because of the digital platform. The new hospital would also incorporate robotic surgery, which particularly lends itself to orthopaedic procedures. Those opportunities are not currently available at Mater’s facilities.
  1. [402]
    Dr McEwen fairly acknowledged that there would initially be some transfer of patients from the Mater to the new hospital. In terms of the medium and longer term impacts, he pointed to the projected growth in the area. The Mater would need to be adaptive and innovative, but they would pick up the lost revenue. He considered that, given the growth projected in the region for both hospitals, having two really good hospitals in town would be a positive outcome.
  1. [403]
    The proposed development supplies hospital and associated health services infrastructure in an efficient and orderly way. It meets a current and future need for health services which will promote the physical and social wellbeing of the people and communities it serves. It will assist in creating and maintaining a well-serviced, healthy community.
  1. [404]
    To the extent the proposed development achieves those things and thereby advances the purpose of the PA, those are also relevant matters that favour its approval.

Conclusion on “relevant matters”

  1. [405]
    In conclusion, there are a number of “relevant matters” pursuant to s 45(5)(b) that support approval of the proposed development:
  1. There is a need for the proposed development;
  1. It facilitates the protection of a place of cultural heritage, in the form of conservation and re-use of the magnificent heritage building which has been vacant and unused for many years;
  1. It facilitates and encourages investment into new health facilities and provides for anticipated growth in health and professional services;
  1. It encourages economic resilience and economic diversity;
  1. It improves the relationship between buildings and the street, and provides an improved visual amenity along Ingham Road and Sturt Street; and
  1. It provides more intensified development close to the principal centre (CBD) and supplies health infrastructure in a coordinated, efficient and orderly way.
  1. [406]
    In doing so, it also advances the purposes of the Act.

Conclusion

  1. [407]
    The proposal has substantial merit. It is for a well designed building to accommodate a development of a kind and at a location which is generally consistent with the relevant planning provisions. It would facilitate the restoration and adaptive reuse of a significant heritage building. It would deliver greater access to health services to the people of regional Queensland. It would result in increased competition, choice and convenience, in the provision of hospital services for the Townsville region. It would provide a needed, state of the art medical facility in an appropriate location.
  1. [408]
    There are no relevant matters which warrant refusal. There are a number of relevant matters that strongly support approval. Indeed, the public interest would be considerably advanced by approval of the proposed development.
  1. [409]
    The proposed development should be approved subject to conditions. I will hear from the parties as to orders effecting these reasons and conditions of approval.

Appendix A

Footnotes

[1] Ex 55.

[2] The Townsville hospital also provides overnight hospital services to private patients.

[3] See Appendix A.

[4] Eg. see Ex 29 Figures 1-7; Ex 8 Figures 1, 2, 4, 10, 11.

[5] Ex 55.

[6] TCP s 1.3.4(1)(a).

[7] The appeal was filed on 31 January 2018, after the commencement of the PA. The applicable regime is that in the PA: see s 229, s 311; Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253.

[8] PECA s 47.

[9] PECA s 43.

[10] PECA s 45.

[11] Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, 277 [93].

[12] Eg. see Ex 2 Appeal Book p 622.

[13] Because the development is for a material change of use on, and adjoining, a Queensland Heritage Place: Planning Regulation 2017 (‘PR’) sch 10, Development Assessment, pt 8, Heritage places.

[14] See also PR s 30(1), (3).

[15] PA s 59, s 45(5).

[16] Which does not apply to this appeal.

[17] PA s 60(3).

[18] Supplementary Written Submissions on behalf of the Appellant 28 November 2018; Supplementary Written Submissions in Reply on behalf of the Appellant 11 December 2018.

[19] Respondent’s Submissions in relation to the application of s 45(5) Planning Act 2016 30 November 2018.

[20] PR s 31(1)(g).

[21] PR sch 24 (definition of ‘common material’).

[22] Respondent’s Submissions in relation to the application of s 45(5) Planning Act 2016 30 November 2018 [3], [10].

[23] Supplementary Outline of Submissions on behalf of the Co-respondent 4 December 2018 [32]-[34].

[24] Supplementary Outline of Submissions on behalf of the Co-respondent 4 December 2018 [34].

[25] [2019] QPEC 16.

[26] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 [41]-[86]. Ashvan was cited with approval by Jones DCJ in Brookside Estate Pty Ltd v Brisbane City Council & Anor [2019] QPEC 33 [15]-[25]. See also Smout v Brisbane City Council [2019] QPEC 10 [50], [51], [54] and Peach v Brisbane City Council & Anor [2019] QPEC 41 [38]-[40].

[27] PA s 60(2)(a).

[28] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 [50], [54].

[29] PA s 43(1)(c).

[30] PA s 43(2).

[31] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA132 [47]; Bell v Brisbane City Council (2018) 230 LGERA 374, 392 [70].

[32] Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA132 [67].

[33] PA s 5(1). Notably, when carrying out code assessment, s 5(1) does not apply to the assessment manager: s 45(4).

[34] Ex 15; see Sustainable Planning Act 2009 (Qld) s 326.

[35] Ex 15; Outline of Submissions on behalf of the Co-Respondent 21 November 2018 [3].

[36] Amended Attachment A and Attachment B to the Written Submissions on Behalf of the Appellant 21 November 2018.

[37] Written Submissions on Behalf of the Appellant 21 November 2018, final paragraph [4.4].

[38] Mirani Solar Farm Pty Ltd v Mackay Regional Council & Anor [2018] QPELR 1158, 1166-1167 [31]-[33] per Jones DCJ; Bilinga Beach Holdings Pty Ltd v Western Downs Regional Council & Anor [2018] QPELR 1102, 1111 [48] per Williamson QC DCJ; Peach v Brisbane City Council & Anor [2019] QPEC 41 [67]-[69] per Williamson QC DCJ.

[39] Supplementary Written Submissions in Reply on behalf of the Appellant 11 December 2018 [2.8].

[40] Supplementary Written Submissions in Reply on behalf of the Appellant 11 December 2018 [2.9].

[41] Mackay v Brisbane City Council [1992] QPLR 65, 67.

[42]By final addresses, the issues had narrowed somewhat. Mater no longer contended that the traffic engineering impacts warranted refusal of the development application.

[43] TCP Schedule 1 Definition, Table SC1.1.2 Use definitions.

[44] TCP s 5.3.2(4).

[45] TCP s 5.3.2(5).

[46] TCP s 8.1(6).

[47] TCP s 5.3.3(4)(c).

[48]Bell v Brisbane City Council [2017] QPEC 26 [27]. Whilst that was the subject of challenge in the Court of Appeal, the Court was unpersuaded that the criticism was justified: Bell v Brisbane City Council (2018) 230 LGERA 374, 387 [50].

[49] TCP s 3.2.1.

[50] TCP s 3.2.1.

[51] TCP s.3.2.2.

[52] TCP s.3.2.6.

[53] TCP s.3.2.6.

[54] TCP s.3.3.1(2).

[55] TCP s 3.3.1(8).

[56] TCP s.3.3.1(9).

[57] TCP s 3.3.4.1(1).

[58] TCP s 3.3.4.1(2).

[59] TCP s 3.3.4.1(28).

[60] Zappala Family Company Pty Ltd v Brisbane City Council (2014) 201 LGERA 82, 94-95 [52]-[56].

[61] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382.

[62] Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337, 342 [18]; Rowley v Caloundra City Council [2009] QPELR 393, 398-399 [18].

[63] H A Bachrach Pty Ltd & Ors v Council of the Shire of Caboolture & Anor (1992) 80 LGERA 230, 235; applied in Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, 326.

[64] TCP s 3.3.4.1(3).

[65] TCP s 3.3.4.1(4).

[66] TCP s 3.3.4.1(8)-(11).

[67] TCP s 3.3.4.1(14)-(17).

[68] TCP s 3.3.4.1(20).

[69] TCP s 3.3.4.1(1), (2).

[70] TCP s 3.3.4.1(12).

[71] TCP s 3.3.4.1(13).

[72] TCP s 3.3.4.1(19).

[73] TCP s 3.3.4.1(6).

[74] TCP s 3.3.4.1(7).

[75] TCP s 3.3.4.1(28).

[76] TCP s 3.3.4.1(28).

[77] TCP s 3.3.4.1(29).

[78] TCP s 3.3.4.1(29).

[79] TCP s 3.3.4.1(30)-(32).

[80] TCP s 3.3.4.1(34). See Overall Outcome s 6.3.6.2(4)(a).

[81] TCP s 3.3.4.1(35).

[82] TCP s 3.3.4.1(36).

[83] TCP s 3.3.4.1(39)-(40).

[84] TCP s 3.3.4.1(40).

[85] TCP s 3.3.4.1(3).

[86] TCP s 6.3.7.2(1).

[87] TCP s 6.3.7.2(2).

[88] TCP s 6.3.7.2(3)(b).

[89] TCP s 6.3.7.3, Table 6.3.7.3, PO5.

[90] TCP s 6.3.7.2(3)(c).

[91] TCP s 3.3.4.1(40).

[92] Integrated Planning Act 1997 (Qld) s 3.5.14(2) required that development not compromise achievement of Desired Environmental Outcomes.

[93] Brown v Brisbane City Council [2005] QPELR 629, 631 [9].

[94] TCP s 3.3.4.1(28). See also s 3.3.4.1(14).

[95] TCP s 3.3.4.1(1).

[96] TCP s 3.2.6.

[97] TCP s 3.3.1(8).

[98] TCP s 3.3.4.1(34).

[99] TCP s 6.3.6.1.

[100] TCP s 6.3.6.2(3)(a).

[101] TCP s 6.3.6.2(2).

[102] TCP s 6.3.6.2(1).

[103] TCP s 6.3.6.2(3)(a).

[104] TCP s 6.3.6.2(3)(d).

[105] TCP s 6.3.6.2(3)(f).

[106] TCP s 6.3.6.2(3)(g).

[107] See TCP Table 6.3.6.3 PO21, PO22.

[108] See TCP Table 6.3.6.3 PO31, PO32.

[109] TCP s 6.3.6.2(4) Fulham Road medical precinct.

[110] TCP s 6.3.6.2(4) Bayswater Road medical precinct.

[111] TCP Schedule 1 Definitions.

[112] In Mater’s Amended Attachment A, Schedule of Specific Submissions on particular issues and planning provisions accompanying the Appellant’s Written Submissions 21 November 2018, Mater confined its submission about non-compliance with this provision to the impact on Fulham Road medical precinct and Bayswater Road medical precinct.

[113] Written submissions on behalf of the Appellant 21 November 2018 [4.3].

[114] Ex 34 [99].

[115] Ex 34 [105].

[116] Ex 34 [109(f)].

[117] Ex 34 [109(h)].

[118] T8-15/33-37.

[119] Ex 34 [109(d)].

[120] State Heritage Code s 9.1.1(1); TCP s 8.2.4.2(1)(b), s 8.2.4.2(2)(a).

[121] TCP s 8.2.4.2(2)(a).

[122] State Heritage Code s 9.1.1(2).

[123] TCP s 8.2.4.2(1)(d).

[124] TCP s 8.2.4.2(1)(f).

[125] TCP s 3.3.3.1(4).

[126] TCP s 8.2.4.2(1)(e).

[127] State Heritage Code s 9.1.1(3).

[128] TCP s 8.2.4.2(2)(d).

[129] TCP s 3.3.3.1(4); s 8.2.4.2(2)(e).

[130] TCP s 8.2.4.2(2)(e).

[131] Initially there may have been some difference between the parties about this issue, but ultimately this was agreed.

[132] State Heritage Code, Table 9.1.2, PO1(1).

[133] State Heritage Code, Table 9.1.2, PO1(2).

[134] State Heritage Code, Table 9.1.2, PO2.

[135] State Heritage Code, Table 9.1.2, PO2(1).

[136] State Heritage Code, Table 9.1.2, PO2(2).

[137] TCP Table 8.2.4.3 PO3.

[138] TCP Table 8.2.4.3 PO4.

[139] TCP Table 8.2.4.3 PO5.

[140] TCP Table 8.2.4.3 PO6.

[141] State Heritage Code, Table 9.1.3, PO1(1).

[142] State Heritage Code, Table 9.1.3, PO1(2).

[143] TCP Table 8.2.4.3 PO13.

[144] Ex 9.

[145] TCP s 3.3.1(5).

[146] TCP s 3.3.3.1(2).

[147] TCP s 6.2.5.2(2).

[148] TCP s 6.2.5.2(3).

[149] TCP Table 6.2.5.3 PO7.

[150] Ex 69.

[151] Written Submissions on Behalf of the Appellant 21 November 2018 [3.65].

[152] Outline of Submissions on behalf of the Co-Respondent 21 November 2018 [1]-[2] and amendments advised by Mr Hughes QC during addresses on 23 November 2018; Amended Attachment A to Appellant’s written submissions 21 November 2018.

[153] TCP s 6.3.7.2(1).

[154] TCP s 6.3.7.2(3)(e).

[155] TCP s 6.3.7.2(3)(f).

[156] TCP s 3.4.5.2.

[157] Ex 24. TCP High density residential zone, Figures 6.42 and 6.48.

[158] Eg. TCP Table 6.3.7.3 CBD Gateway precinct AO58; Kings Road precinct AO84.

[159] TCP s 6.3.7.2 Nelly Bay Precinct (ii); Picnic Bay precinct (ii); Horsehoe Bay precinct (ii); Nelly Bay gateway precinct (d).

[160] TCP s 6.3.7.2 Arcadia Central precinct (d).

[161] Ex 3, pp 85-88 – PO21, Figure 6.119, PO31, Figure 6.121.

[162] Ex 24, pp 6-7, Figure 2.

[163] Outline of Submissions on behalf of the Co-Respondent 21 November 2018 [1]-[2] and amendments advised by Mr Hughes QC during addresses on 23 November 2018.

[164] Ashvan Investments Unit Trust v Brisbane City Council [2019] QPEC 16 [80].

[165] Explanatory Notes, Planning Bill 2015 (Qld) 53.

[166] At 54.

[167] Written Submissions on Behalf of the Appellant 21 November 2018 [1.27(g)] – [1.27(h)]. See also [3.8], [3.42].

[168] Amended Attachment A: Schedule of Specific Submissions on Particular Issues and Planning Provisions Accompanying the Appellant’s Written Submissions 21 November 2018, p 14, “Need”.

[169] Amended Attachment A: Schedule of Specific Submissions on Particular Issues and Planning Provisions Accompanying the Appellant’s Written Submissions 21 November 2018, pp 18-19.

[170] TCP s 3.3.4.1(13).

[171] TCP s 3.3.4.1(27).

[172] Sempf v Gatton Shire Council & Anor (1997) QPELR 198, 198-200.

[173]Kentucky Fried Chicken v Gantidis (1979) 140 CLR 675, 687.

[174] Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515, 517.

[175] Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515, 517.

[176] Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126, 131.

[177] Salmar Holdings Pty Ltd v Hornsby Shire Council (1971) 23 LGRA 14.

[178] (1971) 23 LGRA 14, 25.

[179] (1970) 19 LGRA 347, 351.

[180] Written Submissions on behalf of the Appellant 21 November 2018 [1.2].

[181] TCP s 3.2.1.

[182] (1979) 140 CLR 675 at 681.

[183] (1979) 140 CLR 675 at 687.

[184] PA s 5(1).

[185] PA s 3(1).

[186] PA s 3(2).

[187] PA s 3(3)(b).

[188] PA s 3(3)(c)(i), (ii).

[189] PA s 5(2)(e).

[190] PA s 5(2)(g).

[191] PA s 5(2)(h).

Close

Editorial Notes

  • Published Case Name:

    Mater Health Services North Queensland Ltd v Townsville City Council, Lautaret Pty Ltd and Chief Executive, Department of State Development, Manufacturing, Infrastructure and Planning

  • Shortened Case Name:

    Mater Health Services North Queensland Ltd v Townsville City Council

  • MNC:

    [2019] QPEC 45

  • Court:

    QPEC

  • Judge(s):

    Fantin DCJ

  • Date:

    08 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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