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  • Unreported Judgment

Richards v Brisbane City Council

 

[2020] QPEC 26

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Richards & Ors v Brisbane City Council & Ors [2020] QPEC 26

PARTIES:

MARK CAMERON RICHARDS, BARBARA RICHARDS, NICHOLAS ANDREW SAUNDERS, MARION CAROL SAUNDERS, KENT KIESEKER, JO-ANNE KIESEKER, GRAHAM WEST, ROBYN WEST, HARRY EMMANUEL LONDY, VIKKI ANNE LONDY, JEFFREY DOUGLAS MACLEAN, ALEXANDER MOIR, LEIGH MOIR, VICTORIA LENTON, RICHARD LENTON, RICHARD MARK LEE, ROWAN LEE, ROBERT DEARSLEY, SALLY MARTIN, ANDREW JOHN DECLAN FURLONG, SCOTT MARTIN and JOANNA MARTIN

(Appellants)

v

BRISBANE CITY COUNCIL

(Respondent)

AND

MFM PROPERTY NO.1 PTY LTD (ACN 620 542 976)

(Co-Respondent)

AND

BRADLEY MCGINN

(First Co-Respondent by Election)

FILE NO/S:

2865 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11-12 and 14-15 and 18 May 2020

JUDGE:

Everson DCJ

ORDER:

The appeal will be dismissed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against approval of a development application for a childcare centre in the low density residential zone

PLANNING AND ENVIRONMENT – ASSESSMENT – compliance with the planning scheme – whether there is a need for the proposed development – whether the proposed development will serve a local community facility need only – whether there are relevant matters which justify the proposed development

LEGISLATION:

Planning Act 2016 (Qld) s 45

Planning and Environment Court Act 2016 (Qld) ss 43, 46

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPELR 793

Bell v Brisbane City Council & Ors [2018] QCA 84

Fabcot Pty Ltd v Cairns Regional Council & Ors [2020] QPEC 17

Murphy v Moreton Bay Regional Council & Anor [2019] QPEC 46

Northern Properties Pty Ltd v Brisbane City Council [2019] QPEC 66

Williams McEwans Pty Ltd v Brisbane City Council [1981] QPELR 33

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

COUNSEL:

R Yuen for the Appellants and First Co-Respondent by Election

J Ware for the Respondent

DR Gore QC and MJ Batty for the Co-Respondent

SOLICITORS:

HWL Ebsworth Lawyers for the Appellants and First Co-Respondent by Election

City Legal for the Respondent

Corrs Chambers Westgarth for the Co-Respondent

Introduction

  1. [1]
    This is a submitter appeal against the decision of the respondent dated 10 July 2019 approving an application for a development permit for a material change of use for a childcare centre (“the proposed development”) on land at 19 Melba Crescent and 56 Abbotsleigh Street, Holland Park (“the site”).
  1. [2]
    The appellants were joined by the first co-respondent by election in opposing the proposed development. Essentially, they assert that while the proposed development would not create any unacceptable impacts, it is nonetheless of a scale which is contrary to what is envisaged by the respondent’s planning scheme, City Plan 2014 (“the planning scheme”) and is not consistent with the character of the immediate area.[1]

The site and the surrounding area

  1. [3]
    The site is located on the corner of Abbotsleigh Street and Melba Crescent and has an area of 1,310m².[2]  It has a primary frontage to Abbotsleigh Street which provides all pedestrian and vehicle access.[3]  Abbotsleigh Street is identified as a major road in the respondent’s road hierarchy, being a district access road.[4]  As such it is identified as being capable of carrying between 6,000 and 15,000 vehicles per day.  Melba Crescent is identified as a local neighbourhood road and as such is anticipated to carry between 1,000 and 6,000 vehicles per day.[5]  The site slopes downwards towards Abbotsleigh Street with a crossfall in the order of 5 to 6 metres.[6]
  1. [4]
    The site is zoned Low density residential, it forms part of a pocket of Low density residential and Character residential 1 land to the north of Abbotsleigh Street.[7]  On the southern side of Abbotsleigh Street there are a range of non-residential uses, the most significant of which is Holland Park State School which commences at the intersection of Abbotsleigh Street and Wilbur Street to the east and which is diagonally opposite the site.[8]  Other uses on the southern side of Abbotsleigh Street include a Meals on Wheels facility, Holland Park Bowls Club and CB Mott Park which borders Logan Road.[9]

The proposed development

  1. [5]
    The proposed development is a two storey childcare centre that will cater for up to 84 children and 13 staff. It is intended to operate five days a week, from Monday to Friday between 7.00 am and 7.00 pm.[10] Twenty car parking spaces are provided in the basement, including 12 spaces for staff.[11] As noted above, the carpark will be accessed from Abbotsleigh Street. It is anticipated that when operating the proposed development will generate 400 vehicle movements per day.  Currently there are 5,500 vehicle movements per day along Abbotsleigh Street.  Consequently, the proposed development will not result in Abbotsleigh Street operating above the minimum planned capacity of 6,000 vehicles per day.[12]
  1. [6]
    I accept the unchallenged evidence of Mr Powell, a visual amenity expert, that the height and site cover of the proposed development “are compatible with surrounding residential development”.[13] It is designed to present as two separate buildings with each adopting a bulk and scale similar to a residential dwelling.  The gap between the two is to be similar to that between the existing buildings on the site.[14] The proposed development will also include “residential design and detailing which ensures that the proposed buildings will emulate a residential form and appearance and will sit comfortably in the existing streetscape and local context”.[15]  Substantial areas of deep planting and landscaping are to be provided.[16]  It will be less than 9.5 metres high and give rise to no unreasonable adverse impacts in terms of residential amenity.[17]
  1. [7]
    It is the intention of the co-respondent to provide “a high-quality, loving and nurturing environment” utilising the Pod Early School model.[18]  This model aims to provide “a high-quality service offering to its customers that is distinct from other childcare centre offerings”.[19] In addition to providing high-quality infrastructure and educational resources and exceeding minimum requirements in terms of staff to child ratios and staff qualifications, other features include the use of a professional chef to prepare “tailored daily nutritious meals for the children”, language, cooking, gardening and yoga classes and access to “sustainable gardens”.[20]  Furthermore, Pod Early Schools, such as the proposed development, are strategically co-located near primary schools to provide a convenient childcare option for parents with school aged children and to assist in supporting a collaborative transition from the childcare centre to primary school.[21] A site inspection of the co-respondent’s facility nearby at Mt Gravatt confirmed the presence of a high-quality facility offering services described above.

The statutory assessment framework

  1. [8]
    Pursuant to the Planning and Environment Court Act 2016 (“PECA”) the appeal is by hearing anew,[22] and the co-respondent must establish that the appeal should be dismissed.[23]  Section 46 of the PECA addresses the nature of an appeal and relevantly provides:

(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—

  1. (a)
    the P&E Court were the assessment manager for the development application; and
  1. (b)
    the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
  1. [9]
    As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances of the appeal before me, are the relevant provisions of the planning scheme.[24]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[25]  Of particular significance in the determination of this appeal, s 45 also provides:

“(7) The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.

  1. (8)
    However, the assessment manager may give the weight the assessment manager considers is appropriate, in the circumstances, to—
  1. (a)
    if the statutory instrument or other document is amended or replaced after the development application is properly made but before it is decided by the assessment manager—the amended or replacement instrument or document.
  1. [10]
    In undertaking this task it is important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”[26]

However, Williamson QC DCJ recently observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors that:

“An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s.60(3) of the PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. … It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA.  It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.”[27]

  1. [11]
    The proper approach to non-compliance with the planning scheme in the decision-making process was recently explained by Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor in the following terms:

“Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45.  Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice.  Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”[28]

  1. [12]
    Insofar as the assessment benchmarks themselves are concerned, the applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms:

“The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said:

‘[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”…

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all of the statutory provisions.’

The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.”[29]

The relevant provisions of the planning scheme

  1. [13]
    As a starting point, it is important to note that when assessing the proposed development against various codes, s 5.3.3 of the planning scheme states that code assessable development “that complies with the purpose, overall outcomes and performance outcomes or acceptable outcomes of the code complies with the code.”[30]
  1. [14]
    Relevantly, the Low density residential zone code provides:[31]

“(1) The purpose of the low density residential zone code is to provide for:

  1. (a)
    a variety of low density dwelling types, including dwelling houses; and
  1. (b)
    community uses, and small-scale services, facilities and infrastructure to support local residents.

  1. (4)
    Development location and uses overall outcomes are:

  1. (k)
    Development for a non-residential use serves a local community facility need only, such as a childcare centre or a substation, and is of a bulk and scale that is compatible with and integrates with the built form intent of the Low density residential zone.”
  1. [15]
    At the time the development application for the proposed development was properly made, the site was within the Holland Park—Tarragindi district neighbourhood plan area and subject to the corresponding neighbourhood plan code. This relevantly provided for the following overall outcome in the purpose provisions:[32]

“(g) Development is of a height, scale and form which is consistent with the amenity and character, community expectations and infrastructure assumptions intended for the relevant precinct, sub-precinct or site and is only developed at a greater height, scale and form whether it is both a community need and an economic need for the development.”

  1. [16]
    Thereafter, the performance outcomes and acceptable outcomes relevantly provided:[33]

PO1

Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:

  1. (a)
    consistent with the anticipated density and assumed infrastructure demand;
  1. (b)
    aligned to community expectations about the number of storeys to be built;
  1. (c)
    proportionate to and commensurate with the utility of the site area and frontage width;
  1. (d)
    designed to avoid a significant and undue adverse amenity impact to adjoining development;
  1. (e)
    sited to enable existing and future buildings to be well-separated from each other and to avoid affecting the potential development of an adjoining site.

Note—Development that exceeds the intended number of storeys or building height can place disproportionate pressure on the transport network, public space or community facilities in particular.

Note—Development that is over-scaled for its site can result in an undesirable dominance of vehicle access, parking and manoeuvring areas that significantly reduce streetscape character and amenity.

AO1

Development complies with the number of storeys and building height in Table 7.2.8.1.3.B.

Note—Neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.

 

  1. [17]
    From 29 November 2019 the planning scheme was amended to include the land in the Coorparoo and districts neighbourhood plan area and the corresponding code, relevantly included the following overall outcome in the purpose provisions:[34]

“(j) Development is of a height, scale and form which is consistent with the amenity, character and infrastructure assumptions intended for the relevant precinct, sub-precinct or site.”

  1. [18]
    Thereafter, the performance outcomes and acceptable outcomes relevantly provide:[35]

PO1

Development is of a height, scale and form that achieves the intended outcome for the precinct, improves the amenity of the neighbourhood plan area, contributes to a cohesive streetscape and built form character and is:

  1. (a)
    consistent with the anticipated density and assumed infrastructure demand;
  2. (b)
    aligned to community expectations about the number of storeys to be built;
  3. (c)
    proportionate to and commensurate with the utility of the site area and frontage width;
  4. (d)
    designed so as not to cause a significant and undue adverse amenity impact to adjoining development.

AO1

Development complies with the number of storeys in Table 7.2.3.10.3.B.

Note—Neighbourhood plans will mostly specify a maximum number of storeys where zone outcomes have been varied in relation to building height. Some neighbourhood plans may also specify height in metres. Development must comply with both parameters where maximum number of storeys and height in metres are specified.

Note—Council’s Independent Design Advisory Panel may be invited to provide advice on development, to facilitate high quality development, in accordance with the provisions of the Independent design advisory panel planning scheme policy.

 

  1. [19]
    The Childcare centre code relevantly states:[36]

“(2) The purpose of the code will be achieved through the following overall outcomes:

  1. (b)
    Development is compatible with the residential character and amenity of the zone and sited and designed to minimise impacts on the amenity of nearby residential dwellings.”
  1. [20]
    Although a childcare centre does not come within the definition of a “Community use”,[37] it is included within the definition of “Community facilities”.[38]  The Community facilities code relevantly provides:[39]

“(2) The purpose of the code will be achieved through the following overall outcomes:

  1. (b)
    Development is integrated or co-located with other community facilities where possible to create a multifunctional service hub.”

The disputed issues

  1. [21]
    At the commencement of the trial the agreed list of issues in dispute was refreshingly narrow and it narrowed further to the credit of Mr Yuen, counsel for the appellants and the first co-respondent by election.[40]  Essentially, the disputed issues consist of whether the proposed development complies with the various provisions of the planning scheme quoted above and whether the proposed development should be approved having regard to the existence of a sufficient town planning, community and economic need, its co-location with community facilities including Holland Park State School, and the fact it would not result in any unacceptable amenity impacts. 

The need for the proposed development

  1. [22]
    In the overall outcomes for the Low density residential zone code, s 6.2.1.1(4)(k) requires that the proposed development serve “a local community facility need only”.[41]  This is a reference to planning need.  In the overall outcomes for the Holland Park—Tarragindi district neighbourhood plan code there is a reference in s 7.2.8.1.2(g) to “both a community need and an economic need for the development”.[42]  Each of these concepts was recently explored in Fabcot Pty Ltd v Cairns Regional Council & Ors.[43] Essentially, planning need, or the term need in a planning context without qualification, refers to whether there is a latent unsatisfied demand in an area for the proposed development which is not being adequately met by the planning scheme in its present form.[44] Other terms address the demand in question. Community need refers to an assessment of the extent to which the physical wellbeing of the community would be improved by the proposed development.  Economic need refers to an assessment of whether the extent of the demand for the proposed development is sufficient to support it at a sustainable level.
  1. [23]
    Two economists gave evidence at the hearing of the appeal. Mr Duane gave evidence on behalf of the co-respondents. Mr Norling gave evidence on behalf of the appellants and the first co-respondent by election. In assessing the need for a local community facility, both experts agreed that “the local area need catchment” would correspond with the Holland Park State School catchment.[45] A statistical representation of this area is superimposed upon the primary school catchment in their joint report.[46] There are no childcare centres located within one kilometre of the site and those located within the local catchment area are generally located on the edge of the catchment, meaning they would also attract a substantial amount of their patronage from outside the defined catchment area.[47] Vacancies in these existing childcare centres are currently limited. The population of the local catchment demonstrates significantly above average representation for educational qualifications, female workforce participation and household income, leading to a higher demand for childcare.[48] This also explains the presence of ten families from the local catchment area at the co-respondent’s childcare centre at Mt Gravatt and a further eight families from the local catchment area on the waiting list for this facility.[49] I have no doubt on the evidence before me that the Pod Early Schools model would appeal to many parents of young children in the local catchment area.
  1. [24]
    Both economists concluded that the local catchment area was undersupplied to an extent which exceeded the number of places that would be provided by the proposed development.[50] Mr Duane assessed the need for childcare facilities as being higher than Mr Norling.[51] Mr Norling expressed the view that there is a need for “a centre and a little bit” but the gap in supply should be met by an approved (but yet to be developed) childcare centre nearby at 920 Logan Road, Holland Park West.[52] Under cross-examination from Mr Ware, Mr Norling conceded that this gap between demand and supply for childcare centre places has been clear since 2016.[53]
  1. [25]
    A development application for a material change of use for a childcare centre at 920 Logan Road was approved by the respondent on 30 June 2016. The number of children was to be limited to 75 in a facility which was to be created by retrofitting an existing commercial premises on the heavily trafficked Logan Road.[54] The relevant (currency) period for the approval was 48 months.[55] Despite the need for an additional childcare centre in the local area being present since 2016, nothing was done to give effect to the development approval by the developer, Hart Oxygen Group Pty Ltd (“Hart”). Mr Hatia, a director of Hart, explained that he became aware of the proposed development after being contacted by Mr Norling.[56] This lead to a successful application to extend the currency period, and on 4 March 2020 it was extended to 30 June 2022.[57] It is significant that the only interest Hart has in the premises at 920 Logan Road is a lease.[58] Under cross-examination from Mr Ware, Mr Hatia explained that after obtaining the approval in 2016 he did not make an application for finance to progress the childcare centre at 920 Logan Road because he was aware there would be difficulties with him only having a leasehold interest in the premises.[59] He has only very recently made an application for finance to a different bank to that which he dealt with previously. This remains subject to a favourable valuation and a report from a quantity surveyor. It is unclear whether, even should finance be approved, it would be approved on terms and conditions acceptable to Mr Hatia.[60] A letter from his broker dated 13 May 2020 expressing optimism that finance would be approved does not change the extreme uncertainty about whether or not this development will actually proceed.[61]
  1. [26]
    On the evidence before me, I am not satisfied that it is likely the approved childcare centre at 920 Logan Road will ultimately proceed to serve the identified need for another childcare centre in the local area. This need has existed since 2016 but no steps to activate the development approval at 920 Logan Road have been undertaken until very recently. Furthermore, there is considerable uncertainty as to whether or not finance for the proposed childcare centre at 920 Logan Road will be forthcoming given all the contingencies identified above. I therefore conclude that the proposed development is the only potential childcare centre which is currently capable of meeting the significant planning need for this facility in the local area identified by the economists.
  1. [27]
    Mr Yuen commendably concedes that there is a community need for the proposed development.[62] My factual findings above are such that there is also an economic need for the proposed development because the need for the proposed development is more than sufficient to support it at a sustainable level.
  1. [28]
    Turning to the requirement in s 6.2.1.1(4)(k) that the proposed development only serve a “local community facility need”, I note firstly the appalling drafting of this provision, and secondly that is not capable of literal application. As Williamson QC DCJ observed in Ashvan, “it is unrealistic to expect, in modern times, that a facility such as a Childcare centre would not attract patrons from beyond its ‘local area’”.[63]
  1. [29]
    Subsequently in Northern Properties Pty Ltd v Brisbane City Council & Anor, Williamson QC DCJ addressed the meaning of this concept further:

“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… 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.”[64]

  1. [30]
    Approximately 860 students are enrolled at Holland Park State School and it is the twentieth largest state school in the Brisbane local government area of 129 schools.[65] I have no doubt that when the demand for places at the proposed development by parents and people who work at the school are taken into account, there exists a sufficient “local community facility need” to justify the proposed development.

The scale of the proposed development

  1. [31]
    The alleged non-compliances with the quoted overall outcomes of the Childcare centre code and the Community facilities code can be readily disposed of. Put simply, there is compliance with s 9.3.4.2(2)(b) of the Childcare centre code in circumstances where I accept the unchallenged evidence of Mr Powell that the proposed development is designed in such a way that it is compatible with the residential character and amenity of the zone and it is sited and designed to minimise adverse impacts upon the amenity of nearby residential dwellings. Likewise, there is compliance with s 9.3.5.2(2)(b) of the Community facilities code where the evidence before me demonstrates that the proposed development is appropriately co-located with Holland Park State School.
  1. [32]
    What remains in terms of issues concerning the planning scheme are alleged non-compliance with provisions of the Holland Park—Tarragindi district neighbourhood plan code and the Coorparoo and districts neighbourhood plan code which now applies in place of it. Given the latter is the latest expression of planning intent for the site, I am of the view that it should be given determinative weight, however the requirement in s 7.2.8.1.2(3)(g) of the purpose provisions of the Holland Park—Tarragindi district neighbourhood plan code, allowing for the proviso that a site can only be developed at a greater height and scale and form where there is both a community need and economic need for the development, is complied with in any event. I have already found that there is both a community need and economic need for the proposed development. There is therefore not much significance attaching to these changes given the facts before me, and the same is true for the identified performance outcomes and acceptable outcomes, which are very similar.
  1. [33]
    Although not explicitly mentioned in the agreed list of disputed issues, it is noteworthy that in s 6.2.1.1(1)(b) the purpose of the Low density residential zone code relevantly contemplates “small-scale services” to support local residents. It is clear that a childcare centre is such a use contemplated for the site. I accept the evidence of Mr Norling that the average size of a childcare centre being built today is one providing for 100 to 110 children,[66] and that it is would be unlikely for a developer to build one which catered for less than 75 children.[67] Accordingly, on the facts before me, the proposed development, which is intended to cater for only 84 children, is small-scale in terms of such a use, particularly when it is considered that many applications for this use cater for up to 150 children.[68]
  1. [34]
    Three town planners gave evidence, Mr Schomburgk gave evidence on behalf of the co-respondent, Mr Mulcahy gave evidence on behalf of the respondent and Mr Forsyth gave evidence on behalf of the appellants and the first co-respondent by election. Mr Schomburgk and Mr Mulcahy approached the question of scale, s 7.2.3.10.2(3)(j) of the Coorparoo and districts neighbourhood plan code,[69] from the perspective of built form and the requirement in PO1 that proposed development be consistent with the anticipated density and assumed infrastructure demand, also from the perspective of built form. Mr Forsythe adopted a different approach.  While accepting “that the building height and scale is generally compatible with the surrounding development”,[70] he expressed the view that “the scaledevelopment intensity of the proposal from a use perspective is not consistent with what would be expected in a low density residential area”.[71]  In this regard he nominated the basement carpark for 20 vehicles and the anticipated 90 plus people onsite during the hours of operation as indicating a scale of development which exceeds that which is contemplated by the planning scheme.[72] In my view, when the principles for construction identified in Zappala are applied,[73] and PO1 is read together with AO1, the notes contained thereafter,[74] and the other relevant performance outcomes and acceptable outcomes, it is clear that the term scale merely refers to considerations of built form and not use. Therefore, I reject the argument of the appellants and the first co-respondent by election in this regard and I find that the proposed development is of a scale which is consistent with the requirements of overall outcome 3(j) and PO1 of the Coorparoo and districts neighbourhood plan code.

Relevant matters

  1. [35]
    There is a strong planning, community and economic need for the proposed development in circumstances where it is contemplated for the site. I have not found any meaningful non-compliance with the planning scheme, however, even if the argument of the appellants and the first co-respondent by election about scale referring to the prospective use of the premises is accepted, this would constitute a mere technical non-compliance in circumstances where there are absolutely no adverse impacts as a consequence of the proposed development in terms of visual amenity. I am further satisfied that the conducting of the use itself will not lead to any adverse amenity impacts. Accordingly, such a technical non-compliance should not stand in the way of the proposed development in any event.
  1. [36]
    Furthermore, the proposed development is ideally located to fulfil the existing need for a high standard of childcare which will appeal to the demographic of the local area and complement the nearby Holland Park State School, not only with a view to assisting in transitioning children from childcare to primary school but also in offering the convenience of a facility which is comfortably within walking distance of Holland Park State School, which is the only primary school in the broader area without a co-located childcare centre.[75] It is a superior development which meets an identified need in an appropriate location.
  1. [37]
    Finally, the appellants and the first co-respondent by election submit that any need for the proposed development should be met on other appropriately zoned land. Where the use in question is one expressly contemplated for the site by the planning scheme this is not a legitimate consideration and I reject the submission.

Conclusion

  1. [38]
    I am satisfied that the proposed development is not at variance with what the planning scheme intends for the site. In the event that I am wrong in this regard, any non-compliance is technical and of no planning consequence. The proposed development has significant merit, providing a high-quality childcare facility which will meet a clear need for such a facility which has been present since 2016. It will be co-located with Holland Park State School, with the accompanying benefits of convenience and the prospect of a smoother transition from childcare to school for some of its future occupants.
  1. [39]
    Therefore, the appeal will be dismissed.

Footnotes

[1] Written submissions on behalf of the Appellants and the First Co-Respondent by Election, para 3.

[2] Exhibit 4.03, para 6.

[3] Ibid, para 8 and Exhibit 2.01, p 12.

[4] Exhibit 4.01, para 22.

[5] T3–14, ll 11–15.

[6] Exhibit 4.03, para 7.

[7] Ibid p 28.

[8] Ibid, para 10 and p 28.

[9] Ibid, para 10.

[10] Exhibit 4.03, para 13.

[11] Exhibit 4.03, para 14.

[12] T 3–16, ll 1–38.

[13] Exhibit 5.05-5.06, para 30(a).

[14] Ibid, para 30(b). 

[15] Ibid, para 30(c).

[16] Ibid, para 32.

[17] Ibid, para 31.

[18] Exhibit 7.01-7.05, first affidavit of Mr Loveday, para 18.

[19] Ibid, para 19.

[20] Ibid.

[21] Exhibit 7.01-7.05, first affidavit of Mr Loveday, paras 20-21.

[22] Planning and Environment Court Act 2016 (Qld) s 43.

[23] Ibid s 45(2).

[24] Planning Act 2016 (Qld) s 45(5)(a)(i).

[25] Ibid s 45(5)(b).

[26] [2018] QCA 84 at [66].

[27] [2019] QPELR 793 at 806-807 [53].

[28] [2019] QPEC 46 at [22].

[29][2014] QPELR 686 at 698, 700 [52], [56].

[30]Brisbane City Plan 2014 s 5.3.3(4)(c); Exhibit 3.01-3.27, p 110.

[31] Ibid s 6.2.1.1; pp 159-160.

[32] Brisbane City Plan 2014 s 7.2.8.1.2(3)(g); Exhibit 3.01-3.27, p 163.

[33] Exhibit 3.01-3.27, p 167.

[34] Brisbane City Plan 2014 s 7.2.3.10.2(3)(j); Exhibit 3.01-3.27, p 307.

[35] Ibid table 7.2.3.10.3.A; p 309.

[36] Brisbane City Plan 2014 s 9.3.4.2; Exhibit 3.01-3.27, p 190.

[37] Exhibit 3.01-3.27, p 221.

[38] Ibid, p 249.

[39] Brisbane City Plan 2014 s 9.3.5.2, Exhibit 3.01-3.27, p 199.

[40] Exhibit 9.04.

[41] Brisbane City Plan 2014 s 6.2.1.1(4)(k); Exhibit 3.01-3.27, p 160.

[42] Brisbane City Plan 2014 s 7.2.8.1.2(g); Exhibit 3.01-3.27, p 163.

[43][2020] QPEC 17 at [29]–[32].

[44] Williams McEwans Pty Ltd v Brisbane City Council [1981] QPELR 33 at 35.

[45] Exhibit 4.02, para 44.

[46] Ibid, map 3.

[47] Ibid, para 49.

[48] Ibid, paras 42, 47; T2–42, ll 29–31.

[49] Exhibit 7.08.

[50] Exhibit 4.02, paras 57 and 60 and tables 9 and 11.

[51] Ibid, para 57 and table 9.

[52] T2–37, ll 30–47; T2–38, ll 1–3.

[53] T2–49, ll 5–37.

[54] In these respects it differs from the proposed development and is unlikely to be as appealing to residents of the local area.

[55] Exhibit 8.01-02, p 8; Affidavit of Mr Hatia, Exhibit “HH-1PP1-31”.

[56] T3–45, ll 38–47.

[57] Exhibit 10.01.

[58] Exhibit 10.07.

[59] T3–51, ll 20–46; T3–52, ll 1–4.

[60] T3–52; T3–53, ll 1–21.

[61] Exhibit 10.08.

[62] Written submissions on behalf of the Appellants and the First Co-Respondent by Election, para 136.

[63] [2019] QPELR 793 at 818 [119].

[64] Northern Properties Pty Ltd v Brisbane City Council [2019] QPEC 66 at [78]-[80].

[65] T2–18, ll 37–47.

[66] T2–39, ll 15–21.

[67] T2–40, ll 1–8.

[68] T2–39, ll 17–19.

[69] Exhibit 3.01-3.27, p 307.

[70] Exhibit 4.03, para 103.

[71] Exhibit 6.02, para 10.

[72] Ibid.

[73] Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 at 698-700.

[74] Notes form part of the planning scheme: s 1.3.2(3); Exhibit 3.01-3.27, p 24.

[75] Exhibit 4.02, para 51 and map 3.

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Editorial Notes

  • Published Case Name:

    Mark Cameron Richards, Barbara Richards, Nicholas Andrew Saunders, Marion Carol Saunders, Kent Kieseker, Jo-Anne Kieseker, Graham West, Robyn West, Harry Emmanuel Londy, Vikki Anne Londy, Jeffrey Douglas MacLean, Alexander Moir, Leigh Moir, Victoria Lenton, Richard Lenton, Richard Mark Lee, Rowan Lee, Robert Dearsley, Sally Martin, Andrew John Declan Furlong, Scott Martin and Joanna Martin v Brisbane City Council, MFM Property No 1 Pty Ltd and Bradley McGinn

  • Shortened Case Name:

    Richards v Brisbane City Council

  • MNC:

    [2020] QPEC 26

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    28 May 2020

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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