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- Unreported Judgment
PLANNING AND ENVIRONMENT COURTOF QUEENSLAND
Northern Properties Pty Ltd v Brisbane City Council & Anor  QPEC 66
NORTHERN PROPERTIES PTY LTD (ACN 607 339 837)
BRISBANE CITY COUNCIL
(first co-respondent by election)
3500 of 2018
Planning and Environment Court
Appeal against refusal
Planning and Environment Court of Queensland, Brisbane
20 December 2019
18, 19 and 20 November 2019
Williamson QC DCJ
Orders in accordance with paragraph  of these reasons for judgment.
PLANNING AND ENVIRONMENT – APPEAL – where application for a material change of use for a Childcare centre and a Multiple dwelling (19 units) in the Low-medium density residential zone and Character residential zone – whether noise from the outdoor play areas of the Childcare centre will have an unacceptable impact on the balcony of five units in the proposed development – whether the proposed Childcare centre will serve a local community facility need only – whether the development complies with the respondent’s planning scheme – whether in the exercise of the discretion the application should be approved.
Planning Act 2016 (Qld), ss.45 and 60.
Planning & Environment Court Act 2016 (Qld), ss.43 and 45.
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16
HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors  QPEC 56
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46
Mackay v Brisbane City Council  QPLR 65
Parmac Investments Pty Ltd v Brisbane City Council & Ors  QPELR 480
Ms D Whitehouse for the appellant
Mr N Loos for the respondent
MacDonnells Law for the appellant
City Legal for the respondent
Will the Childcare centre have an unacceptable noise impact on the proposed units?..............................................4
Will the Childcare centre serve a local community facility need only?........................................................................14
Does the proposal comply with the planning scheme?.................................................................................................22
Exercise of the planning discretion..................................................................................................................................22
- Northern Properties Pty Ltd seeks to redevelop land situated at Dalmarnock Street, Enoggera (the land) with a mixed use development. The redevelopment comprises three elements, namely: (1) two basement levels of car parking; (2) a Childcare centre for 106 children, located on the ground floor; and (3) 19 apartments across two levels, situated above the Childcare centre.
- The land is a good size, and well located, for the proposed redevelopment. It comprises five vacant contiguous lots with two road frontages, and has an area of about 2,000m2. Public transport, open space, community facilities and commercial development are conveniently located nearby. The Gaythorne train station, which is located about 360 metres to the southwest, is located within easy walking distance.
- The height, bulk, scale and form of the redevelopment will be consistent with the character of the surrounding area. The character comprises a mix of two to three storey Multiple dwellings and modern detached houses. Consistent with this mix, the land has the benefit of an extant development approval for a three storey Multiple dwelling (26 units) of similar height, bulk and scale to that proposed. This approval has not been acted upon.
- To facilitate the redevelopment of the land, Northern Properties made an impact assessable development application to Council. The application was assessed and decided under the Planning Act 2016 (PA). The primary assessment benchmark against which the application was assessed is Council’s planning scheme, City Plan. For the purposes of the planning scheme, the land is included partly in the Character residential zone, and partly in the Low-medium density residential zone. The application was refused by Council’s delegate in September 2018. The decision notice communicating the refusal contained some 27 reasons for refusal.
- This is an appeal against the delegate’s refusal. It is a hearing anew.
- Consistent with the delegate’s decision, Council maintains the application should be refused. Just prior to the commencement of the hearing, the reasons said to warrant refusal of the application were extensive and wide ranging, with many lacking in merit. Council however narrowed its case. At the hearing, it elected to advance only a limited number of grounds said to warrant refusal. The grounds are articulated in an agreed list of issues. The issues to be determined, based on the agreed list, can be identified as follows:
- (a)whether the noise generated by the outdoor play areas associated with the Childcare centre will have an unacceptable noise impact on the Multiple dwelling component of the proposed development;
- (b)whether the Childcare centre will serve a local community facility need only;
- (c)whether the proposed development complies with City Plan;
- (d)whether any non-compliance with City Plan can be cured by conditions; and
- (e)whether, in the exercise of the planning discretion, the application should be approved, or refused, having regard to the above issues, and ‘relevant matters’ identified by Northern Properties.
- It is for Northern Properties to establish the appeal should be upheld.
- I will now deal with each of the issues identified in paragraph  above.
Will the Childcare centre have an unacceptable noise impact on the proposed units?
- To examine the acoustic impacts of the proposed Childcare centre, I had the benefit of evidence from two acoustic experts, Mr King and Ms Adams. They participated in a joint meeting and produced a joint report, which was admitted and marked Exhibit 5.
- As a matter of agreement, Mr King and Ms Adams adopted the noise monitoring data contained in the development application. After confirming the reliability of that data, they agreed to examine the proposed development against a noise criterion specified in Performance outcome PO10 of the Childcare centre code in City Plan. This provision states, in part:
Development is of a nature and scale which does not result in noise emissions that exceed the following criteria:
(a) LAeq,adj,T emitted from the development is not greater than the rating background level plus 3 at the sensitive use.
Where T is:
(a) Day (7am to 6pm): 11 hr;
(b) Evening (6pm to 10pm): 4 hr;
(c) Night (10pm to 7am): 9hr.”
- It was agreed by Mr King and Ms Adams that the application of the above noise criterion, in the circumstances of this case, equated to 39 dB LAeq for the day time period between 7.00am to 6.00pm. This criterion was identified by both experts in their oral evidence as being an ‘intrusive noise’ criterion.
- Mr King and Ms Adams modelled the predicted resulting noise levels from the Childcare centre on the upper level external balconies of the proposed units. The modelling assumed any approval for the use would be conditioned with four specific noise mitigation measures. The mitigation measures are as follows: (1) noise barriers would be located around the perimeter of all outdoor play areas; (2) the underside of the roof and building elements, which cover parts of the outdoor play areas, would be lined with material having an acoustic absorptive finish of NRC 0.6; (3) outdoor play area usage would be limited to the hours of 7.00am to 6.00pm; and (4) the use of outdoor play areas would be limited to 4 hours per day between 7.00am to 6.00pm, with an occupancy rate of no more than 50%.
- Based on the assumptions set out above, the predicted resultant noise levels were calculated by Mr King and Ms Adams. The results of those calculations are tabulated in Table 1 of the noise joint report. The table reveals that noise from the outdoor play areas of the Childcare centre will exceed 39 dB LAeq on 11 of the 19 proposed unit balconies. To address this exceedance, Mr King proposed two further noise control measures. He recommended solid acoustic balustrades be provided to the affected balconies, along with an acoustic lining to the underside of the ceiling area of each balcony. These measures, in combination, reduce the predicted noise levels by 3 to 5 dBa. Even allowing for this reduction, it was agreed that 39 dB LAeq would be exceeded on the balcony of 5 units, namely units 5, 6, 7, 15 and 16. The exceedance is in the order of 3 to 6 dBa. The location of each exceedance is depicted in Exhibit 10.
- It was Mr King’s opinion that the exceedance identified will not be unacceptable. In his oral evidence, he characterised the exceedance as having a ‘quite minor’ impact on the future occupants of the proposed units. The reasons advanced in support of this opinion are set out at paragraphs 26 and 39 of Mr King’s further statement of evidence, which was supplemented in his oral evidence.
- As I understood Mr King’s evidence, he gave seven reasons why the impact would not be unacceptable, namely: (1) persons living in the units would be well aware of the location of the Childcare centre at ground level; (2) the exceedances would occur only on weekdays during daytime hours, namely 7.00am to 6.00pm, for a maximum of 4 hours per day; (3) the predicted resulting noise level of 45 decibels is not uncharacteristically high for children playing; (4) the resultant noise levels of up to 45 dB LAeq are within current daytime ambient noise levels in this locality, where average dB LAeq levels are 57 dBa during the daytime; (5) the noise from the outdoor play area will be well within the current ambient noise environment, which is dominated by traffic noise and other local noise sources; (6) the sound of children playing is already a characteristic of the existing noise environment and amenity; and (7) if residents find the noise of children playing intrusive when utilising their balcony, they can remain inside their unit with the door closed, or alternatively, relocate to the communal open space area in the development where compliance with the intrusive noise criterion is achieved.
- The point made by Mr King in relation to item (7) above was expanded upon in his oral evidence where at T2-33 of the transcript he said:
“... I’ve stated clearly that the numbers exceed the rating background level, plus 39 criteria, but people, if they find the noise annoying they could always go back inside their unit and close the door if they choose. They have that option, and also in this instance this development has a communal outdoor recreation area on level 2, which is in the centre of the level 2 area where they could go to...be away from the child care centre noise if they so choose, and that’s a common methodology adopted for unit developments on busy roads where most outdoor private open spaces, balconies don’t comply with the traffic noise criteria. Otherwise you have the communal outdoor recreation area that complies. That’s regarded as acceptable…”
- Ms Adams expressed a contrary view to Mr King. She said the noise from the Childcare centre will be intrusive and adversely impact the five balconies referred to above. As I understood her evidence, Ms Adams was not influenced by the relativity as between the predicted noise level and the ambient average Leq level. Rather, she attested that the noise from the outdoor play areas would be intrusive and unacceptably impact on the use of five balconies above. She said this was demonstrated by the significant exceedance of the applicable (and agreed) intrusive noise criterion.
- Where, as here, it has been unequivocally demonstrated that a noise source generated by a non-residential use will materially exceed an intrusive noise criterion at a sensitive residential use, the opinion expressed by Ms Adams is one that would, ordinarily, be expected to follow as a matter of course. The matter is not, however, that simple. There are particular features of this case, which satisfy me that the noise impact from the outdoor play areas will be acceptable in the circumstances. The features include those matters identified by Mr King in his evidence, which are set out at paragraphs 15 and 16 above. They also include particular aspects of City Plan, which are not the subject of an allegation of non-compliance by Council.
- Dealing firstly with Mr King’s evidence, he correctly factored into his assessment a combination of matters that put the predicted noise impact into its proper context. He took into account: (1) the particular characteristics of the noise source, namely children playing; (2) the existing noise environment and the prevalence of the noise source (children playing) in that environment; (3) the containment of the impact within the boundaries of the land the subject of the development application; (4) that the impact was limited to an external area of a dwelling within the same development; (5) that the impact is limited to an external area of a dwelling in the same development in circumstances where the existing ambient average noise level is elevated above that anticipated in City Plan, namely 55 dba; (6) the noise impact will be short in duration, and occur on weekdays only; and (7) that the impact does not arise in circumstances where a new Childcare centre generates an unacceptable level of noise that impacts upon an existing, and established, residential use. I was not persuaded Ms Adams’ assessment of the acceptability of the noise impact gave sufficient recognition to the above matters, particularly items (3), (4), (5), (6) and (7).
- The acceptability or otherwise of the noise impact identified by Mr King and Ms Adams is, in any event, materially informed by the planning scheme, City Plan. This is because the acceptability of the impact turns largely, if not solely, upon this question: is the noise impact one that falls within the range of impacts to be reasonably expected having regard to City Plan? This question is answered, in my view, by reference to two Overall outcomes in City Plan. Council does not allege non-compliance with either provision.
- Overall outcome (4)(j) of the Low-medium density residential zone code states:
“(j) Development reflects and supports the level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a low-medium density, but predominantly permanent residential environment.”
- Overall outcome (4)(d) of the Character residential zone code is in similar terms to the above provision, and states:
“(d) Development reflects and supports the high level of comfort, quiet, privacy and safety (including impacts of glare, odour, light, noise, traffic, parking, servicing and hours of operation) reasonably expected within a predominantly low density permanent residential environment.”
- The Overall outcomes set out above are contained within the two zone codes applying to the land. Each provision requires development to ‘reflect’ and ‘support’ the level of ‘comfort’ and ‘quiet’, including the impacts of noise, reasonably expected in the zone. Council does not suggest either provision is offended by the proposed development. It must therefore accept that the noise impact, whilst appreciable, will not detract from the level of comfort, quiet and privacy reasonably expected in the zone. When the noise impact is considered in this light, it is difficult to accept that the noise impact will be unacceptable, or alternatively, will fall outside the range of impacts that should reasonably be anticipated in each of the zones.
- Whilst Council did not allege non-compliance with the above Overall outcomes, it did however rely upon a number of other provisions of City Plan to contend the noise impact is unacceptable, and warrants refusal. The provisions relied upon are contained in two development codes, namely, the Childcare centre code and the Community facilities code.
- Turning firstly to the Childcare centre code, Council does not allege non-compliance with Performance outcome PO10 of the code from which the intrusive noise criterion was drawn by Mr King and Ms Adams. Council does, however, rely upon the Performance outcome as a provision of City Plan that points to refusal. The provision states:
Development is of a nature and scale which does not result in noise emissions that exceed the following criteria:
Where T is:
Where LAeq,adj,T is the A-weighted equivalent continuous sound pressure level during measurement time T, adjusted for tonal and impulsive noise characteristics, determined in accordance with the methodology described in the Noise impact assessment planning scheme policy.
Note—Rating background level is to be determined in accordance with the methodology described in the Noise impact assessment planning scheme policy.
Note—A noise impact assessment report prepared in accordance with the methodology described in the Noise impact assessment planning scheme policy can assist in demonstrating achievement of this performance outcome.
Development provides a 2m high acoustic fence and a minimum 2m wide landscaped buffer along any boundary adjoining land in a zone in the Residential zones category.
Development ensures mechanical plant or equipment is acoustically screened from adjoining sensitive uses.
Note—Mechanical plant includes generators, motors, compressors and pumps, for example air-conditioning, refrigeration or coldroom motors.
Development does not operate before 7am or after 7pm.
- PO10 is unusual in a performance based planning scheme. It prescribes an empirical measure, which must be satisfied to demonstrate compliance. The empirical measure is the intrusive noise criterion applied by the noise experts, with which there is an agreed non-compliance. At this point, one might be forgiven for thinking that non-compliance with PO10 of the Childcare centre code has been established and tells against the identified noise impact being acceptable. The difficulty for Council’s case is that Acceptable outcomes AO10.1 to AO10.3 suggest otherwise.
- The structure of City Plan is such that compliance with a Performance outcome can be demonstrated in one of two ways: (1) by demonstrating compliance with the Acceptable outcomes applying to the Performance outcome; or (2) by demonstrating compliance with the terms of the Performance outcome itself. Here, the proposed Childcare centre does not meet Performance outcome PO10. It does, however, comply with each and every one of the applicable Acceptable outcomes. This is unusual.
- Despite compliance being demonstrated with the Acceptable outcomes, Council nonetheless sought to advance PO10 of the code as being a matter supportive of its case. Council contended the non-compliance with the noise criterion stated in PO10 should be treated as an indicator that the noise impact will be a negative impact, leading to a diminution of the amenity and enjoyment of the affected units. I reject this submission.
- The unusual circumstances applying to Performance outcome PO10, and its corresponding Acceptable outcomes, arises in this case because Council seeks to apply the intrusive noise criterion to a sensitive use within the same development, rather than limit its application to development on surrounding land. It should not, in my view, be readily assumed that the noise criterion should be utilised in this way where, such as here, compliance has been demonstrated with the Acceptable outcomes.
- The Acceptable outcomes suggest the planning objective to which PO10 is directed will be achieved where noise impacts are managed, in essence, at the boundary of the land the subject of the application to protect adjoining uses. This planning objective will be met by the proposed development.
- Given the structure of City Plan, and given compliance has been demonstrated with the relevant Acceptable outcomes, Performance outcome PO10 of the Childcare centre code does not assist Council’s case.
- Council also calls in aid Performance outcome PO2 of the Childcare centre code, and its accompanying Acceptable outcomes, which state:
Development is of a nature, scale, design and construction that prevents adverse impacts on the amenity of nearby sensitive uses.
Development is on a site located in one of the following:
Hours of operation (including deliveries) for a child care centre are limited to between 7am and 7pm.
- Performance outcome PO2 is directed towards the management of the adverse amenity impacts of a Childcare centre on ‘nearby sensitive uses’. Multiple dwellings are, by definition, sensitive uses under City Plan. The term ‘nearby’ is not defined. It can be accepted that the plain and ordinary meaning of the word captures the proposed Childcare centre and Multiple dwellings given their proximity. Some of the Multiple dwellings are contiguous with the proposed Childcare centre.
- Whilst I am prepared to proceed on the footing that the Multiple dwellings proposed are nearby sensitive uses for the purposes of Performance outcome PO2, I am satisfied the proposed development complies with this provision of City Plan and, in turn, Overall outcome (2)(b) of the Childcare centre code.
- Compliance with PO2 of the Childcare centre code can be demonstrated through compliance with Acceptable outcomes AO2.1 and AO2.2. The proposed development complies with AO2.1, in part, and can be conditioned to comply with the hours of operation specified in AO2.2. The departure from Acceptable outcome AO2.1 is a consequence of the land being included in two zones, namely the Low-medium density residential zone and the Character residential zone. It is the inclusion of the land in the latter zone, which gives rise to the departure from AO2.1. The departure from the Acceptable outcome is minor and does not bespeak any town planning consequence.
- In my view, it is difficult to be concerned about the planning consequences, if any, associated with the departure from AO2.1 of the Childcare centre code given Council’s attitude to the continued relevance of the Character residential zoning of the land. The historical attitude, seemingly uninfluenced by the spectre of litigation, is reflected in recent development approvals granted by Council for the land. There are two historical approvals granted by Council: (1) an approval authorising the demolition of two character houses; and (2) an approval authorising a three storey Multiple dwelling with 26 units. In the decision notice dated 7 February 2017, containing the second of these two approvals, it is recorded the assessment manager was satisfied there were sufficient grounds to grant the approval despite conflict with City Plan 2014. A sufficient ground stated in the decision notice to overcome conflict was as follows:
“Due to the house demolition approval, the planning scheme is out of date as the site should be included in the Low-Medium density residential zone.”
- I am satisfied compliance has been demonstrated with PO2 of the Childcare centre code on either one of two alternative bases: (1) having regard to Mr King’s evidence; or alternatively (2) given substantial compliance has been demonstrated with the corresponding Acceptable outcomes, and the extent of the departure is, in any event, de minimus in a town planning sense.
- Compliance with PO2 is further support for the proposition that the noise impacts of the proposed Childcare centre will not be unacceptable, nor warrant refusal. It is also consistent with the proposition that the proposed development is sited, and designed, to minimise adverse amenity impacts on nearby residential uses, as is anticipated by Overall outcome (2)(b) of the same code.
- Accordingly, PO2 of the Childcare centre code does not assist Council’s case.
- Turning to the Community facilities code, Council relies upon Performance outcome PO2 in support of Ms Adams’ opinion. This provision states:
Development ensures that noise generated does not exceed the noise (planning) criteria in Table 184.108.40.206.B and night-time noise criteria in Table 220.127.116.11.C at a sensitive zone or sensitive use.
Note—A noise impact assessment report prepared in accordance with the Noise impact assessment planning scheme policy can assist in demonstrating achievement of this performance outcome.
Note—Where the development involves an activity regulated by the Entertainment Venues and Events Local Law, the operating noise levels and requirements may be specified on a permit or approval issued under that law.” (emphasis added)
- As I understand Council’s case, it contends the development does not comply with PO2 of the Community facilities code because:
- (a)the land is included in two sensitive zones prescribed in Table 18.104.22.168.B;
- (b)the proposed Multiple dwelling is defined as a sensitive use for the purposes of City Plan;
- (c)within the two sensitive zones in which the land is included, Table 22.214.171.124.B prescribes two potential noise criteria (the intrusive criterion and acoustic amenity criterion);
- (d)the applicable noise criterion is the intrusive noise criterion, which produces a noise level in this case of 39 dBa;
- (e)it is agreed the predicted noise levels from the outdoor play areas will exceed 39 dBa on the balconies of 5 proposed units above.
- There are two immediate difficulties with the approach Council urges the Court to adopt with respect to PO2 of the Community facilities code in this case.
- First, the Performance outcome speaks of the noise generated ‘at a’ sensitive use, or a sensitive zone. Contrary to Council’s position, Table 126.96.36.199.B does not identify a noise criterion that is applicable to a sensitive use, namely a Multiple dwelling, where it is located in the Low-medium density zone, or Character residential zone. The ‘sensitive use’ aspect of the Performance outcome is not engaged.
- Second, the prescribed noise criteria in Table 188.8.131.52.B are relevant to sensitive zones, but are expressly stated to apply at the boundary of the zone. That is to say, the criteria relevant to sensitive zones, in my view, is intended to measure the impact of noise from a proposed Community facility at the boundary of a sensitive zone to protect the uses within that zone. This does not have in mind that a Community facility is required to demonstrate compliance with the identified criteria where it is located on land within a sensitive zone, such as the case here. To suggest otherwise requires the words ‘or within’ to be read into PO2, presumably after the word ‘at’ and before ‘a’.
- Council has not established there is a proper basis to read words into PO2. In such circumstances, it is my view the provision does not directly apply to the development application in the manner suggested by Council.
- At first blush, this may be thought to leave a gap in the assessment of the development application to the extent it involves a noise impact from a Community facility on a sensitive use, in a sensitive zone. There is, however, no gap in the assessment having regard to three provisions of City Plan, namely s.5.3.3(4)(c), Overall outcome (2)(k) of the Community facilities code and, in the particular circumstances of this case, Performance outcome PO10 of the Childcare centre code.
- Section 5.3.3(4)(c) of City Plan applies to code assessment and contemplates that development will comply with a code where compliance is demonstrated with the Performance outcomes in the code, and the Overall outcomes for the code. This has the effect that, whilst Performance outcome PO2 does not have direct application, Northern Properties is not relieved of demonstrating compliance with the Overall outcomes applying to the code. A relevant Overall outcome is (2)(k) which states:
“(k) Development achieves satisfactory standards in managing the potential adverse impacts on the health, safety and amenity of adjoining sensitive uses, predominantly through maintaining adequate buffering between these land uses.”
- Council does not allege non-compliance with the above Overall outcome. In any event, I am satisfied the evidence establishes compliance with it. The evidence demonstrates the proposed development will achieve a satisfactory standard in managing the potential adverse impacts on the health, safety and amenity of adjoining sensitive uses, including the proposed units. Compliance with Overall outcome (2)(k) favours a conclusion that is, again, consistent with Mr King’s evidence.
- I would also add that the acceptability of the noise impact on the balconies of five of the proposed units can be examined by reference to the Multiple dwelling code. The Council did not allege non-compliance with this code.
- It is uncontroversial that the proposed development seeks approval for Multiple dwellings as defined in City Plan. The development code for this use includes Performance outcome PO42, which states, in part:
Development that includes mechanical plant (including air-conditioning plant, heat pumps and swimming pool pumps) ensures it is located, designed and attenuated to achieve the following criteria:
Where T is
Development ensures mechanical plant is acoustically screened from nearby sensitive uses.
- Performance outcome PO42 requires mechanical plant associated with a Multiple dwelling to achieve the same intrusive noise criterion that was examined by the noise experts in this appeal. The provision expressly limits the assessment of the noise impact from mechanical plant to sensitive uses ‘not associated’ with the development.
- That P042 limits the assessment of noise impacts to sensitive uses not associated with the proposed development lends support to the case advanced on behalf of Northern properties. The provision suggests that owners or occupiers of Multiple dwellings do not have an unassailable expectation that the intrusive noise criterion will not be exceeded on the balcony of their unit from noise sources generated as part of the same development.
- For the reasons given above, I am satisfied the proposed Childcare centre will not have an unacceptable noise impact on the Multiple dwelling component of the proposed development.
- I am also satisfied there is no provision of City Plan that warrants refusal of the application by reason of the noise impact on the Multiple dwelling component of the proposed development.
- Accordingly, the question at paragraph 6(a) should be answered in the negative.
Will the Childcare centre serve a local community facility need only?
- Council alleges the Childcare centre component of the proposed development will serve more than a local community facility need. This is said to give rise to a material non-compliance with City Plan, namely Overall outcome (4)(p) of the Low-medium density residential zone code. This provision states:
“(p) Development for any other non-residential use serves a local community facility need only such as a child care centre or a substation.”
- To examine this issue, I had the benefit of evidence from two economists, namely Mr Leyshon and Mr Brown. In a joint report they agreed, for the purposes of analysis, the ‘local community facility need’ means the need evident in the suburb of Enoggera. Council ‘urged’ the Court at paragraph 65 of its outline of submissions to accept this area as being the ‘local’ area for the purposes of Overall outcome (4)(p). I am satisfied this is an appropriate basis upon which to consider compliance with the Overall outcome.
- It is unnecessary to dwell upon the evidence of the economists because there was, in truth, substantial agreement between them. Not only did they agree about the relevant study area, they also agreed: (1) the demographic profile of the study area was such that it is reasonable to expect the demand for long day care centres, such as that proposed, would be much greater than the general average for Brisbane; (2) the demand for long day care centres would be greater in the local area, when compared to the Brisbane general average, given the higher percentage of households where both parents work, coupled with their higher than average income levels; (3) the present demand generated by the population of the local area for long day care centres is equivalent to 3.6 typical centres (providing 57 spaces), increasing to 4.5 in 2031; and (4) the number of existing long day care centres serving the local area is 7.
- Having regard to the above 4 points, it appears difficult for Northern Properties to demonstrate there is a latent unsatisfied demand for a Childcare centre in the local area. Put simply, the resident population has a demand for 3.6 to 4.6 Childcare centres in circumstances where there are already 7 operating in the local area. This, however, does not mark the end of the assessment.
- Each of the economists attempted to assess the vacancy levels in the existing facilities in the local area. Whilst both acknowledged this is a very difficult task where there is considerable room for doubt about the reliability of the derived vacancy rate, it was common ground the local market is supply constrained.
- In Mr Leyshon’s opinion, the vacancy levels in existing centres are likely to be well above 85%. This Court has held in the past that occupancy rates exceeding 85% for long day care centres, such as that proposed, indicate a supply constrained market where ‘parents will miss out’ and ‘parents will suffer’.
- If the demand from local residents for Childcare centres is significantly less than existing supply, why are the existing facilities in the local area at, or near, maximum occupancy?
- The answer to this question is to be found in Mr Leyshon’s evidence. He said this case, in a need sense, is ‘very unusual’. It was Mr Leyshon’s opinion that the existing supply and demand balance in the local area is likely to be the result of three factors. He identified these factors at paragraph 85 of the need joint report, which states:
“In PL’s opinion the demand for LDC centres in Enoggera at a rate well above that indicated by the demand generated by the local population is likely to be the result of the following factors:
- firstly, there is a large working population in Enoggera SA2 of approximately 8,112 persons (2016 Census) of which approximately 5,600 are employed at the Enoggera (Gallipoli) Barracks. It is likely that many of those employed within the suburb of Enoggera may choose to place their children in an LDC centre within the suburb in which they work rather than close to their home;
- secondly, the area is located on a main rail line which connects the area to the Brisbane CBD and other important employment centres. Residents have access to stations at Mitchelton, Oxford Park, Gaythorne and Enoggera. It is likely therefore, that some parents who live outside the area may choose to place their children in an LDC centre within the suburb of Enoggera or Mitchelton and then catch public transport to their place of employment; and
- thirdly, Samford Road which runs through the suburbs of Mitchelton Gaythorne and Enoggera is an important link between the inner northern suburbs of Brisbane and suburbs on the north west fringe of the City such as Keperra, Ferny Grove, Arana Hills and Samford Valley. Thus, some residents of the suburbs to the north west of Enoggera may choose to travel by car along Samford Road, drop their children at an LDC in either Mitchelton or Enoggera and then continue to their place of work further to the east or south-east of Enoggera.”
- Mr Brown did not appear to disagree in any material way with the explanation given by Mr Leyshon in paragraph 85 of the need joint report.
- I accept this aspect of Mr Leyshon’s evidence. The explanation he provided for the supply/demand balance fairly reflects that the local area is close to existing employment opportunities, which draw from a residential population significantly greater than the local resident population of Enoggera. It also reflects that the local area has good accessibility to, and is conveniently served by, reliable public transport facilities.
- With the particular circumstances of the local area in mind, Mr Leyshon opined that a need exists for the proposed Childcare centre in the period 2016 to 2031. He reached this conclusion on the footing that: (1) his assessment suggests the residents of the identified local area of Enoggera alone have a demand for an additional Childcare centre in the period 2016 to 2031, equating to approximately 57 spaces; (2) given local circumstances, an assessment of need should not be limited to the demand arising from the local resident population; and (3) at least 50% of the demand (53 spaces proposed) for the proposed Childcare centre will come from members of the public who reside outside of Enoggera, but have a connection with the local area.
- I accept Mr Leyshon’s evidence that there is a need for a further Childcare centre in Enoggera. The need exists today given there is a supply constrained market. The need will continue to grow in force between now and 2031.
- That the need will grow in force and is neither pressing, nor critical is of little concern. The facility proposed is one essential to daily life. Childcare centres are important pieces of social infrastructure for any community. The local community here is no different in this respect. It has a genuine demand for an additional Childcare centre.
- This Court has recognised that the matters that will combine to establish a planning need will vary from case to case and, when, as here, the need to be satisfied involves an essential of ordinary life, the bar should not be set too high. I agree. That the bar should not be set too high in this case is also confirmed by two factors: (1) the demographics of the local area suggest there is a high likelihood the population will generate a significant demand for Childcare centres given the number of families with two working parents, and the number of children in the relevant target cohort; and (2) the resident population of the local area competes with employees and visitors to the local area for access to Childcare centres to a very significant extent, such that the market is supply constrained.
- As I understood Mr Brown’s evidence, and in turn Council’s position, it was accepted the need assessment revealed a local need for 57 additional long day care centre places between now and 2031. The point made was that a Childcare centre of 106 spaces would serve more than a local need as envisaged by Overall outcome (4)(p) of the Low-medium density residential zone code. That is to say, the proposed Childcare centre would rely upon demand that is generated external to the local area.
- In support of this position, a number of submissions were made on behalf of Council as to the proper interpretation, and application, of Overall outcome (4)(p) of the Low-medium density residential zone code.
- First, in reliance upon my decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16, it was submitted that compliance with Overall outcome (4)(p) is a question of fact and degree. I accept this submission.
- Second, it was submitted the Overall outcome served a particular planning purpose. Paragraph 50 of Council’s outline of submissions identified the purpose in the following terms:
“The Council’s position has been that the planning purpose underlying the local need test is to direct larger child care centres into centre zones or the Community Facility Zone. ‘Smaller’ child care centres are then permitted in residential areas, as indicated by the local need test applying only in the residential zone codes and not in the centre zone codes.”
- Third, and again in reliance upon my decision in Ashvan, it was submitted the purpose of the zone code is important ‘in construing Overall outcome (4)(p)’. The particular part of the purpose relied upon is subsection (1)(b) which states:
“(1) The purpose of the low-medium density residential zone is to provide for:
(b) community uses, and small-scale services, facilities and infrastructure, to support local residents.”
- With the above purpose statement in mind, I was reminded by Council of what I said in Ashvan at paragraph , which states:
“Whether development will serve a local need, or something more for the purposes of overall outcome (4)(k) is a question of fact and degree. It will be informed by a range of considerations, including the nature of the use proposed, and relevant context in City Plan 2014. That context includes the purpose of the Low density residential zone, which describes the nature and intended function of non-residential uses anticipated in the zone. They are described as including ‘small-scale services, facilities and infrastructure’, which includes social infrastructure, such as Community facilities. The purpose of the zone confirms that uses of this character are intended to ‘support local residents’.”
- Against the background of the above, the following submission was made on behalf of Council:
“It is the Council’s position that purpose provision 1(b) of the LMZ Zone Code is important in construing OO4(p). The two provisions read together lead to the construction that a “local community facility need only” is a need to support local residents. That indicates against the need consideration extending to employees and visitors.”
- Fourth, as the above submission records, Council contends the proper interpretation of Overall outcome (4)(p), read with paragraph (1)(b) of the zone code, works against the relevant need extending to employees and visitors. It was submitted that employees and visitors are not ignored all together. At paragraph 52 of Council’s outline of submissions it was said:
“Employees are not ignored by that construction – but rather in suburbs where there are large employment hubs, the planning intention is that child care centres ought to be in centre zones or in the Community Facilities zone. Mr Gaskell added that in his opinion another option was that such child care centres ought to be located on higher order roads and not in residential areas.”
- I accept the question of compliance with Overall outcome (4)(p) is one of fact and degree, and the purpose of the zone code is important to the proper interpretation of the provision. I also accept the Overall outcome, when read with the purpose of the zone code, suggests the need to be examined is the underlying need for a Community facility that supports local residents. The issue to be determined is whether the need to be examined is limited to a local community facility need generated by local residents only. I have misgivings as to whether the test is so limited. Such a limitation has an air of impracticality about it.
- To suggest a local community facility need relates to local residents only ignores that the zone to which the relevant test applies anticipates non-residential uses. So much is made clear in paragraph 1(b) of the purpose of the zone. When non-residential uses are anticipated in the zone, it should also be fairly assumed there is a prospect that such uses may attract patronage from: (1) employees of non-residential uses in the same zone, or local area; and (2) visitors to the zone/local area. Despite their place of residence, such employees, and visitors have a connection with the zone, and in turn, the local area. This connection cannot be precluded, either physically, or on town planning grounds. Self-evidently, the zone is not a hard boundary or border that precludes all, save for local residents, from using facilities within the zone.
- In my view, employees of, and visitors to, non-residential uses in the zone form part of the local community (to varying degrees), and can reasonably be assumed to contribute to the demand for local community facilities. To ignore this demand would be to attribute a character to the zone which it does not have. The Low-medium density residential zone is, after all, predominantly, but not solely residential in nature.
- Putting to one side the practical consideration I dealt with above, Council’s suggested construction of Overall outcome (4)(p) has a further difficulty.
- Overall outcome (4)(p) calls for the identification of a ‘local community facility need’. To limit the Overall outcome to the needs of local residents necessarily requires one of two things: (1) the words ‘local residents’ to be read into the provision; or (2) a purposive approach to be adopted to the zone code, where the Overall outcome is construed as being limited by the purpose statement of the zone code. Council, through Mr Loos, eschewed any suggestion that words should be read into Overall outcome (4)(p). Rather, he invited the Court to adopt a purposive approach. That submission is not without force.
- Overall outcome (4)(p), read with the purpose statement for the zone code, can be said to suggest the need to be examined is one that supports local residents. That said, the provisions do not, in my view, necessarily require the needs of employees or visitors to the zone to be ignored. They, like local residents, form part of a community. The businesses where people work can be located in residential zones and, as here, contribute to the generation of demand for an important Community facility.
- If Overall outcome (4)(p) was intended to be limited in the way Council contends, it would have been a simple matter to state that the need to be examined is limited to that generated by local residents. This is precisely what is specified in Overall outcome (4)(m) of the same zone code. This provision anticipates non-residential uses in the zone and states:
“(m) Development for a compatible and individual small-scale non-residential use which is a community care centre, community use, health care service, office, shop or veterinary service (together with any associated caretaker’s accommodation or dwelling unit) where not on land within the Commercial character building overlay or the Active frontages in residential zones overlay, is to:
(i) have a gross floor area of less than 250m2;
(ii) serve local residents’ day-to-day needs;
(iii) not undermine the viability of a nearby centre.”
- If Council’s purposive approach is adopted, it would seem subsection (ii) in Overall outcome (4)(m) above is, in part, superfluous. There would be no need to specify the need as being limited to serving ‘local residents’ if this was in fact intended as a general rule applying by reason of the purpose of the zone code.
- In circumstances where employees and visitors form part of the ‘community’ anticipated in the zone, and cannot be excluded from using, and contributing to, the demand for Community facilities in the zone, why should they be ignored for the purposes of Overall outcome (4)(p) of the zone code? There is no evidence to support a contention that, as a matter of town planning principle or practice, they should be excluded from consideration. In my view, there is no reason to do so in this case.
- The more important issue to be examined is the weight to be given to the demand generated by employees and visitors in the assessment against Overall outcome (4)(p). Depending upon the circumstances, it will be one of many considerations to be taken into account. The extent to which it bears upon the ultimate answer turns on matters of fact and degree.
- Here, the evidence establishes that the demand generated by employees and visitors to the local area for Childcare facilities is equal to that of local residents in the zone. I do not consider this level of demand from non-residents can fairly be described as falling within the phrase ‘local community facility need only’. It is a substantial demand. Non-compliance with overall outcome (4)(p) has therefore been established.
- Overall outcome (4)(p) is not however the only provision of the planning scheme that deals with the provision of Childcare centres in the local area. The provision needs to be considered in concert with the Mitchelton centre neighbourhood plan code.
- The land is included in the Mitchelton centre neighbourhood plan area. Overall outcome (3)(f) of the neighbourhood plan code applies to the entirety of the neighbourhood plan area, and is relevant to the provision of Childcare centres. It deals specifically with Community facilities, which includes Childcare centres, and states:
“(f) A range of community facilities and services is supported in the neighbourhood plan area that caters to residents, employees and visitors. New development assists in providing community spaces to meet the needs of the growing local community. Community facilities are supported to co-locate with public and private open space.”
- Overall outcome (3)(f) of the Mitchelton centre neighbourhood plan code recognises there is a planning need for Community facilities in the relevant area. It makes provision for this need and, in doing so, expressly provides support for Community facilities that cater for ‘residents, employees and visitors’. This support is provided for land included in not only Centre zones, but a range of zones, including the Low-medium density residential zone. This, in turn, provides direct support for the proposed Childcare centre, which on Mr Leyshon’s evidence, will cater for residents, employees and visitors of the neighbourhood plan area.
- A central theme of Council’s case is the proposition that City Plan evinces a planning strategy that larger Childcare centres are directed away from residential areas, and towards recognised centres, and the Community facility zone. Putting to one side that City Plan does not speak of large, or small, Community facilities, as a general rule, it can be accepted. It is, however, a general rule and, like many rules, subject to an exception. The exception here is provided by the Mitchelton centre neighbourhood plan code. It provides support for Community facilities on land not included in a Centre, or Community facility zone. That support is provided in circumstances where the relevant provision of City Plan does not require the facility to cater to the needs of a residential, or local, population only. The Overall outcome encourages facilities to cater for the needs of residents, employees and visitors. The proposed development will do precisely this.
- The proposed Childcare centre does not comply with Overall outcome (4)(p) of the zone code because it will cater to the needs of employees and visitors. As against this, the proposed development complies with Overall outcome (3)(f) of the neighbourhood plan code because it will cater for the needs of employees and visitors.
- How is this point of difference resolved?
- This was a matter traversed in submissions. I asked Mr Loos how the point of difference was to be resolved. He initially submitted that the neighbourhood plan was to be construed as applying to land in centres and the Community facilities zone only. He later withdrew this submission.
- I also asked Mr Loos during submissions why Council conceded compliance with Overall outcome (4)(p) of the neighbourhood plan code. I considered this to be of relevance to the resolution of the point of difference. Mr Loos asked for time to consider his response. I gave him that time during oral addresses. I also granted leave for supplementary written submissions to be delivered after the conclusion of oral addresses on the point. Regrettably, the question I posed remains unanswered by Council. No oral submission was made on its behalf about the point. In response to the grant of leave, Council declined to take up the opportunity to make any further written submissions.
- The point of difference is resolved by s.1.5(d) of City Plan, which expressly provides that neighbourhood plan codes prevail over the zone codes, to the extent of any inconsistency. Here, an assessment of the application against two Overall outcomes in two different codes produces an inconsistency by reason of the same fact (the proposed development will meet the needs of employees and visitors to the local area). The inconsistency is resolved in favour of the neighbourhood plan.
- Even if the difference between the Overall outcomes is one that cannot be characterised strictly as an inconsistency, the difference should be resolved in the same manner as anticipated by s.1.5(d). As a matter of orthodox planning principle, greater weight should be attributed to the most particular, and detailed, level of planning, which is the neighbourhood plan. That it represents the most particular level of planning is confirmed by the purpose of the neighbourhood plan code, which states, in part:
“The purpose of the Mitchelton centre neighbourhood plan code is to provide finer grained planning at a local level for the Mitchelton centre neighbourhood plan area.”
- That a neighbourhood plan code should prevail over a zone code is also informed by a further practical planning consideration. The zone code applies to all land in the zone, located anywhere in the planning scheme area. The zone provisions are not cast with an eye to specific local planning issues. This is to be contrasted with the neighbourhood plan code which is directed at local planning issues. In this light, it is not difficult to see why the provision of the zone code should yield to the effect of finer grained planning, which is directed to specific local planning issues.
- Given the above, I do not consider the non-compliance with Overall outcome (4)(p) of the Low-medium density residential zone code is a reason for refusal in this case. It is offset by reason that compliance has been demonstrated with Overall outcome (3)(f) of the Mitchelton centre neighbourhood plan code. This provision provides direct support for the proposal. The support is not subject to a condition, or limitation, requiring the demonstration of a need. The provision encourages facilities of the kind proposed in the neighbourhood plan area (in which the land is included) to cater for the needs of residents, employees and visitors. That need can be met by the proposed development. Importantly, the need can be met by the proposal absent any unacceptable impacts on the surrounding area.
Does the proposal comply with the planning scheme?
- In the agreed list of issues, Council contends an approval would be non-compliant with City Plan. This allegation assumes the proposed Childcare centre will have an unacceptable impact on the amenity of the proposed units, and will serve a need greater than a local Community facility need only. For the reasons given above, I am satisfied the proposed development can be conditioned to comply with the planning scheme, read as a whole. This assumes non-compliance has been established with Overall outcome (4)(p) of the Low-medium density residential zone code, but the non-compliance is offset by compliance with Overall outcome (3)(f) of the Mitchelton centre neighbourhood plan code. It also assumes that the conditions imposed on any approval would reflect the recommendations made by Mr King in his assessment of the noise impacts.
- Northern Properties advanced a number of relevant matters which were said to favour an approval in the circumstances of the case. The relevant matters can be reduced to two points: (1) there is a need for the proposed development; and (2) the need can be met on the land absent any unacceptable impacts.
- For reasons given above, I accept items (1) and (2) have been established on the evidence.
- The need relied upon is recognised, and provided for, in finer grained planning documents, which are directed at particular local planning issues. The planning support provided by the finer grained planning supports the proposed development. The planning support recognises there is a need for facilities such as that proposed, and that the need may, subject to meeting other planning requirements, be met on the land. Here, there are no other planning requirements that militate against approval. Indeed, it should be acknowledged the need can be met on the land without any unacceptable impacts on amenity or character. The combination of these two matters has been recognised as reflecting a compelling reason to approve an application for development.
Exercise of the planning discretion
- The statutory assessment and decision making framework for this appeal is prescribed by, inter alia, the PA. I have approached this framework consistent with my decision in Ashvan and the decision of her Honour Judge Kefford in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46. In particular, I am cognisant the discretion to decide the fate of Northern Properties’ impact assessable application under the PA is expressed in broad terms. It is more flexible than its statutory predecessor. This planning discretion is not constrained by a conflict and grounds test. Central to the exercise of the discretion is reaching a balanced decision in the public interest.
- Council’s case relies upon three reasons for refusal: (1) the proposed Childcare centre will have an unacceptable noise impact on five of the proposed units; (2) the development will cater for more than a ‘local community facility need’; and (3) as a consequence of items (1) and (2), the proposed development does not comply with City Plan. For the reasons given above, I am satisfied Northern Properties has demonstrated these matters do not warrant refusal of the application. This is so even if an inconsistency, in strict terms, is not established as between Overall outcome (3)(f) of the neighbourhood plan code and Overall outcome (4)(f) of the zone code.
- In the exercise of the planning discretion, there are two compelling reasons that tell in favour of approval.
- First, the application complies with the planning scheme read as a whole. It has been said for many years, one would need strong reasons to refuse an application, which on its face, is consistent with the adopted planning controls. I am satisfied there are no reasons, let alone strong reasons, to refuse the application in the face of compliance with City Plan.
- Second, if contrary to my view, non-compliance with City Plan was demonstrated, that non-compliance is limited to Overall outcome (4)(p) of the Low-medium density residential zone code. This non-compliance does not warrant refusal. I am comfortably satisfied that such a non-compliance is technical in nature and does not manifest in any appreciable planning consequence. Rather, an approval would sound in material public benefits given the proposed development will meet the very need anticipated by Overall outcome (3)(f) of the Mitchelton centre neighbourhood plan. This need will be met in circumstances where there will be no unacceptable impacts on the amenity and character of the zone. In saying this, I am cognisant that the identified need is not a pressing or critical need. That need however exists today in a constrained market. It will continue to grow in force over time. It relates to a facility described by the planning scheme as being essential social infrastructure. The weight to be given to the identified need is, in all the circumstances, significant.
- I am satisfied an approval would represent a balanced decision in the public interest (in a planning sense).
- I am satisfied Northern Properties has discharged the onus, and Council’s decision to refuse the application should be set aside.
- Council’s decision to refuse will, in due course, be replaced with an approval, granted subject to conditions. The conditions will need to reflect the recommendations made by Mr King. The appeal will be adjourned for the parties to agree upon a suite of conditions.
- The orders of the Court will be:
- By 4.00pm on 5 February 2020 the respondent is to provide a draft suite of conditions to the appellant.
- The appeal be listed for review at 9.15am on 7 February 2020.
 Ex.4, p.7, paragraph 27.
 Ex.4, p.6, paragraph 18.
 Ex.4, p.7, paragraph 27.
 Granted by way of decision notice dated 7 February 2017, which is located at Ex.4, p.100 onwards.
 Ex.2, pp.9 to 15.
Planning and Environment Court Act 2016 (PECA), s.43.
 Just prior to the hearing, the Council abandoned many issues alleging the proposed development was unacceptable by reason of its height, bulk and scale. These allegations were made in circumstances where there are, as agreed by the town planning witnesses, clear similarities between the bulk, height and scale of the development approved by Council in February 2017 and the proposed development.
 Ex.2, pp.1-2.
 PECA, s.45(1)(a).
 Ex.5, p.9, paragraph 20.
 Ex.5, p.9, paragraph 21.
 Ex.5, pp.9-10, paragraph 24.
 Ex.5, p.10, paragraph 26.
 Ex.6, pp.9 and 12, paragraphs 26 and 39.
 T2-33, lines 1-26.
 T2-48, line 14 to T2-49, line 36.
 Ex.3, p.123.
 Ex.3, p.129.
 For example, see s. 7.1(6)(f) at Ex.3, p.139.
 Ex.14, p.9, paragraph 28.
 Ex.3, p.176.
 Ex.4, pp.8-9, paragraph 36.
 Ex.3, p.193.
 Ex.3, p. 228.
 Ex.7, p.9, paragraph 38.
 Ex.7, p.16, paragraph 70.
 It is, to use Mr Leyshon’s words, ‘almost impossible’ to derive a precise vacancy rate because it is reliant upon existing centre operators providing accurate commercial information.
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16 at 37 .
 Ex.7, p.26, paragraph 109.
 Ex.7, p.27, paragraph 120.
 Ex.7, p.27, paragraph 118.
 Ex.7, p.27, paragraph 120.
 Compare Parmac Investments Pty Ltd v Brisbane City Council & Ors  QPELR 480 at 485 .
 Ex.7, p.27, paragraph 118 and Ex.14, p.12, paragraph 41.
 Ex.14, p.12, paragraphs 47(c) and 48.
 Ex.14, p.13, paragraph 51.
 Ex. 14, pp.13-14, paragraph 51.
 This is to be contrasted with small-scale non-residential uses and the controls associated with those uses.
 Ex. 3, p. 27.
HPC Urban Design & Planning Pty Ltd & Anor v Ipswich City Council & Ors  QPEC 54.
 In the sense discussed at paragraph - in Ashvan.
Ashvan, , citing Mackay v Brisbane City Council  QPLR 65 at 67.
- Published Case Name:
Northern Properties Pty Ltd v Brisbane City Council & Anor
- Shortened Case Name:
Northern Properties Pty Ltd v Brisbane City Council
 QPEC 66
Williamson QC DCJ
20 Dec 2019